EXHIBIT 10.8
CHANGE IN CONTROL SEVERANCE AGREEMENT
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THIS CHANGE IN CONTROL SEVERANCE AGREEMENT ("Agreement") is made and
entered into as of this 1st day of March, 2000, by and between The Cameron
Savings & Loan Association, F.A., a federally chartered savings institution
(which, together with any successor thereto which executes and delivers the
assumption agreement provided for in Section 8(a) hereof or which otherwise
becomes bound by the terms and provisions of this Agreement by operation of law,
is hereinafter referred to as the "Association"), and Xxxxx X. Xxxxxxxxxx, (the
"Employee").
WHEREAS, the Employee is currently serving as Executive Vice President and
Chief Executive Officer of the Association; and
WHEREAS, the Association has converted to capital stock form (the
"Conversion") and become the wholly-owned subsidiary of Cameron Financial
Corporation (the "Holding Company"); and
WHEREAS, the Board of Directors of the Association recognizes that, as is
the case with publicly held corporations generally, the possibility of a change
in control of the Association or the Holding Company may exist and that such
possibility, and the uncertainty and questions which it may raise among
management, may result in the departure or distraction of key management
personnel to the detriment of the Association, the Holding Company and their
respective stockholders; and
WHEREAS, the Board of Directors of the Association believes it is in the
best interests of the Company to enter into this Agreement with the Employee in
order to assure continuity of the management of the Association and to reinforce
and encourage the continued attention and dedication of the Employee to the
Employee's assigned duties without distraction in the face of potentially
disruptive circumstances arising from the possibility of a change in control of
the Association or the Holding Company, although no such change is now
contemplated; and
WHEREAS, the Board of Directors intends that this Agreement shall not
create any right of continued employment on behalf of the Employee, nor shall
the Employee be entitled to any payments hereunder unless a Change in Control
(as defined herein) shall occur followed by the involuntary termination of the
Employee's employment; and
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WHEREAS, the Board of Directors of the Association has approved and
authorized the execution of this Agreement with the Employee to take effect as
stated in Section 1 hereof;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, it is AGREED as
follows:
1. TERM OF AGREEMENT
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The term of this Agreement shall be deemed to have commenced as of the date
first above written and shall continue for a period of thirty-six (36) full
calendar months thereafter. Commencing on the first anniversary date of this
Agreement and continuing on each anniversary date thereafter, this Agreement
shall be extended for a period of one year in addition to the then-remaining
term under this Agreement, unless either the Association or the Employee gives
contrary written notice to the other not less than 90 days in advance of the
date on which the term of employment under this Agreement would otherwise be
extended, and provided that no extension shall occur unless prior to each
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anniversary date, the Board of Directors of the Association has reviewed a
formal evaluation of the Employee's performance during the year preceding such
anniversary prepared by the disinterested members of the Board of Directors of
the Association and explicitly approved such extension of the term of this
Agreement.
2. PAYMENTS TO THE EMPLOYEE UPON CHANGE IN CONTROL
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(a) Upon the occurrence of a Change in Control (as herein defined) of the
Association or the Holding Company followed at any time during the term of this
Agreement by the involuntary termination of the Employee's employment, other
than for cause, as defined in Section 2(d) hereof, the provisions of Section 3
shall apply.
(b) A "change in control" of the Association or the Holding Company shall
mean (1) any acquisition of control (other than by a trustee or other fiduciary
holding securities under an employee benefit plan of the Holding Company or a
subsidiary of the Holding Company), as defined in 12 C.F.R. (S) 574.4, or any
successor regulation, of the Association or Holding Company which would require
the filing of an application for acquisition of control or notice of change in
control in a manner as set forth in 12 C.F.R. (S) 574.3, or any successor
regulation; (2) the ownership, holding or power to vote more than 25% of the
Association's or Holding Company's voting stock; (3) the control of the election
of a majority of the Association's or Holding Company's directors; (4) the
exercise of a controlling influence over the management or
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policies of the Association or Holding 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) (except in the case of (1), (2), (3) and (4), hereof,
ownership or control of the Association by the Holding 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 Association or Holding Company (the "Continuing Directors")
cease for any reason to constitute at least two-thirds thereof, provided that
any individual whose election or nomination for election as a member of the
Association or Holding Company Board was approved by a vote of at least two-
thirds of the continuing Directors then in office shall be considered a
Continuing Director. Notwithstanding the foregoing, a change in control shall
not be deemed to have occurred with respect to the purchase of shares by
underwriters in connection with a public offering.
(c) The Employee's employment under this Agreement may be terminated at any
time by the Board of Directors of the Association. The terms "involuntary
termination" or "involuntarily terminated" in this Agreement shall refer to the
termination of the employment of the Employee without the Employee's express
written consent. In addition, any of the following actions shall constitute
involuntary termination of employment unless consented to in writing by the
Employee: (1) change in the principal workplace of the Employee to a location
outside of a 35 mile radius from the Association's headquarters office as of the
date hereof; (2) a material demotion of the Employee or material adverse change
in the salary, perquisites, benefits, contingent benefits or vacation time which
had theretofore been provided to the Employee, other than as part of an overall
program applied uniformly and with equitable effect to all members of the senior
management of the Association or the Holding Company; and (3) a material
permanent increase in the required hours of work or the workload of the
Employee.
(d) The Employee shall not have the right to receive termination benefits
pursuant to Section 3 hereof upon termination for cause. For purposes of this
Agreement, termination for "cause" shall include termination for personal
dishonesty, incompetence, willful misconduct, breach of a fiduciary duty
involving personal profit, intentional failure to perform stated duties, willful
violation of any material law, rule, or regulation (other than a law, rule or
regulation relating to a traffic violation or similar offense) or final cease-
and-desist order, or material breach of any provision of this Agreement.
Notwithstanding the foregoing, the Employee shall not be deemed to have been
terminated for cause unless and until there shall have been delivered
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to the Employee a copy of a resolution, duly adopted by the affirmative vote of
not less than a majority of the entire membership of the Board of Directors of
the Association at a meeting of the Board called and held for such purpose
(after reasonable notice to the Employee and an opportunity for the Employee,
together with the Employee's counsel, to be heard before the Board), stating
that in the good faith opinion of the Board the Employee was guilty of conduct
constituting "cause" as set forth above and specifying the particulars thereof
in detail.
3. TERMINATION BENEFITS
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(a) Upon the occurrence of a change in control, followed by the involuntary
termination of the Employee's employment, other than for cause, the Association
shall pay to the Employee in a lump sum in cash within 25 business days after
the date of severance of employment an amount equal to 299 percent of the
Employee's "base amount" of compensation during the "base period", as defined in
Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended ("Code"),
and the proposed regulations thereunder in existence on the date hereof. In
connection with these determinations, compensation received by the Employee
during any short taxable years shall be annualized. If the Employee was not
employed by the Association during the entire five-year "base period", then the
portion of such five-year period during which the Employee performed personal
services for the Association or related entity shall be deemed to be the base
period.
(b) Upon the occurrence of a change in control of the Association or the
Holding Company followed by the involuntary termination of the Employee's
employment, other than for cause, the Association shall cause life and health
insurance coverage substantially similar to the coverage maintained by the
Association for the Employee immediately prior to such termination to be
maintained for a period of twelve (12) months or for the remaining term of this
Agreement, whichever is greater.
4. CERTAIN REDUCTION OF PAYMENTS BY THE ASSOCATION
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Anything in this Agreement to the contrary notwithstanding, in the event
that the amount or amounts of any benefit or benefits payable to the Employee
under this Agreement or otherwise ("Benefits") are such that any portion of the
amount of Benefits would be non-deductible by the Holding Company or the
Association for Federal income tax purposes pursuant to Section 280G of the
Code, then the amount of Benefits shall be reduced to the amount, not less than
zero, which maximizes the amount of Benefits payable to the Employee without
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causing any portion to be non-deductible by the Holding Company or the
Association pursuant to Section 280G of the Code. The Employee shall determine
the allocation of any such reduction among the Benefits.
5. REQUIRED REGULATORY PROVISIONS
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(a) If the Employee 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) or (g)(1) of the Federal Deposit Insurance Act
("FDIA"), 12 U.S.C. (S) 1818(e)(3) and (g)(1), the Association's 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
Association may in its discretion (i) pay the Employee all or part of the
compensation withheld while its obligations under this Agreement were suspended,
and (ii) reinstate in whole or in part any of the obligations which were
suspended.
(b) If the Employee is removed from office and/or permanently prohibited
from participating in the conduct of the Association's affairs by an order
issued under Section 8(e)(4) or (g)(1) of the FDIA, 12 U.S.C. (S) 1818(e)(4) or
(g)(1), all obligations of the Association under this Agreement shall terminate,
as of the effective date of the order, but vested rights of the parties shall
not be affected.
(c) If the Association becomes in default (as defined in Section 3(x)(1) of
the FDIA), all obligations under this Agreement shall terminate as of the date
of default, but this provision shall not affect any vested rights of the
parties.
(d) All obligations under this Agreement may be terminated, except to the
extent determined that continuation of this Agreement is necessary for the
continued operation of the Association: (i) by the Director of the Office of
Thrift Supervision (the "OTS"), 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 Association under the authority contained in Section 13(c)
of the FDIA, or (ii) by the Director of the OTS, or his or her designee, at the
time the OTS approves a supervisory merger to resolve problems related to
operation of the Association or when the Association is determined by the OTS to
be in an unsafe or unsound condition. Any rights of the parties that have
already vested, however, shall not be affected by any such action.
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(e) Any payments made to the Employee pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with 12 U.S.C.
(S) 1828(k) and any regulations promulgated thereunder.
6. MODIFICATION AND WAIVER
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(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 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.
7. NO MITIGATION
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The amount of any payment or benefit provided for in this Agreement shall
not be reduced by any compensation earned by the Employee as the result of
employment by another employer, by retirement benefits after the date of
termination or otherwise.
8. NO ASSIGNMENTS
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(a) This Agreement is personal to each of the parties hereto, and neither
party may assign or delegate any of its rights or obligations hereunder without
first obtaining the written consent of the other party; provided, however, that
the Association will require any successor or assign (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Association, by an
assumption agreement in form and substance satisfactory to the Employee, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Association would be required to perform it if no such
succession or assignment had taken place. Failure of the Association to obtain
such an assumption agreement prior to the effectiveness of any such succession
or assignment shall be a breach of this Agreement and shall entitle the Employee
to compensation from the Association in the same amount and on the same terms as
the compensation pursuant to Section 3 hereof. For purposes of implementing the
provisions of this Section 8(a), the date on which any such succession becomes
effective shall be deemed the date of termination or employment.
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(b) This agreement and all rights of the Employee hereunder shall inure to
the benefit of and be enforceable by the Employee's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Employee should die while any amounts would still
be payable to the Employee hereunder if the Employee had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Employee's devisee, legatee or other designee
or if there is no such designee, to the Employee's estate.
9. NOTICE
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For the purposes of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed to have
been duly given when personally delivered or sent by certified mail, return
receipt requested, postage prepaid, addressed to the Association at its main
office to the attention of the Board of Directors of the Association with a copy
to the Secretary of the Association, or, if to the Employee, at such home or
other address as the Employee has most recently furnished in writing to the
company.
For the purposes of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed to have
been duly given when personally delivered or sent by certified mail, return
receipt requested, postage prepaid, addressed to the Association at its main
office to the attention of the Board of Directors of the Association with a copy
to the Secretary of the Association, or, if to the Employee, at such home or
other address as the Employee has most recently furnished in writing to the
company.
10. AMENDMENTS
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No amendments or additions to this Agreement shall be binding unless in
writing and signed by both parties, except as herein otherwise provided.
11. PARAGRAPH HEADINGS
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The paragraph headings used in this Agreement are included solely for
convenience and shall not affect, or be used in connection with, the
interpretation of this agreement.
12. SEVERABILITY
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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.
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13. GOVERNING LAW
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This agreement shall be governed by the laws of the United States to the
extent applicable and otherwise by the laws of the State of Missouri.
14. ARBITRATION
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Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration 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.
15. REIMBURSEMENT
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In the event the Association purports to terminate the Employee for cause,
but it is determined by a court of competent jurisdiction or by an arbitrator
pursuant to Section 14 that cause did not exist for such termination, or if in
any event it is determined by any such court or arbitrator that the Association
has failed to make timely payment of any amounts owed to the Employee under this
Agreement, the Employee shall be entitled to reimbursement for all reasonable
costs, including attorney's fees, incurred in challenging such termination or
collecting such amounts. Such reimbursement shall be in addition to all rights
to which the Employee is otherwise entitled under this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION, WHICH MAY BE
ENFORCED BY THE PARTIES.
THE CAMERON SAVINGS & LOAN
Attest: ASSOCIATION, F.A.
/s/ Xxxxxx X. Xxx By: /s/ Xxx X. Xxxxxx
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Secretary Its: Chairman
WITNESS: EMPLOYEE:
/s/ Xxxxx Xxx /s/ Xxxxx X. Xxxxxxxxxx
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Xxxxx Xxx Xxxxx X. Xxxxxxxxxx
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