EXHIBIT 10.18
CHANGE IN CONTROL AGREEMENT
This CHANGE IN CONTROL AGREEMENT (this "Agreement"), is entered into by and
between JEFFERSON SAVINGS BANCORP, INC., a Delaware corporation ("Company"),
JEFFERSON HERITAGE BANK, a federal savings association ("Bank"), and Xxxx X.
Xxxxxx ("Employee").
RECITALS
WHEREAS, Employee is a key employee of Company and/or Bank.
WHEREAS, Company's Board of Directors ("Board") has determined that it is
in the best interests of Company and its shareholders to assure Employee's
continued dedication, time, attention, and loyalty, notwithstanding the
possibility, threat, or occurrence of a Change in Control, as defined below.
WHEREAS, in furtherance of that goal, the Board wishes to provide Employee
with certain benefits, if his employment should terminate as a result of a
Change in Control.
WHEREAS, in reliance on this Agreement, Employee is willing to continue his
employment with Company and/or Bank on the terms as may be agreed to by
Employee, Bank and Company from time to time.
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions herein, the sufficiency of which consideration is acknowledged by the
parties hereto, the parties hereby agree as follows:
AGREEMENT
1. Duration of Agreement. This Agreement shall be effective January 1,
2000 ("Effective Date"), and shall continue until the end of the Term, as
defined below.
2. Definitions. The following words and phrases, when capitalized, shall
have the following meanings for purposes of this Agreement:
(a) Anniversary Date. "Anniversary Date" means each anniversary of
the Effective Date occurring during the Term, as defined below.
(b) Change in Control. "Change in Control" means:
(i) the acquisition, other than from Company or Bank, by any
individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 25% or more of either the
then outstanding shares of Common Stock of Company or Bank or the
combined voting power of the then outstanding voting securities of
Company or Bank entitled to vote generally in the election of
directors, but excluding, for this purpose, any such acquisition by
Company or Bank or any subsidiaries in which Company or Bank owns,
directly or indirectly, a proprietary interest of more than 50% (the
"Subsidiaries"), or any employee benefit plan (ore related trust) of
Company or Bank or their Subsidiaries;
(ii) individuals who, as of the date hereof, constitute the Board
of Directors (the "Incumbent Board") of Company or Bank cease for any
reason to constitute at least a majority of the Board of Directors,
provided that any individual becoming a director subsequent to the
date hereof whose election, or nomination for election by Company's or
Bank's shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered
as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of Company
or Bank (as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act);
(iii) approval by the stockholders of Company or Bank of a
reorganization, merger or consolidation of Company, in each case, with
respect to which all or substantially all of the individuals and
entities who were the respective beneficial owners of the Common Stock
and voting securities of Company or Bank immediately prior to such
reorganization, merger or consolidation do not, following such
reorganization, merger or consolidation, beneficially own, directly or
indirectly, more than 65% of, respectively, the then outstanding
shares of Common Stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation
resulting from such reorganization, merger or consolidation, or a
complete liquidation or dissolution of Company or Bank or of the sale
or other disposition of all or substantially all of the assets of
Company or Bank; or
(iv) the acquisition and exercise of a controlling influence over
the management or policies of Company of Bank by any person or by
persons acting as a group within the meaning of Section 13(d) of the
Securities Exchange Act of 1934.
(c) Change in Control Date. "Change in Control Date" means the date
as of which a Change in Control occurs.
(d) Disability. "Disability" means Employee's inability to perform
the material duties of his employment because of physical or mental illness,
which inability is likely to last for a period of one year or longer.
(e) Good Reason. "Good Reason" means a material change in position,
title, compensation, status, responsibilities, or working conditions in effect
immediately before, pursuant to or after the Change in Control or relocation of
Employee's place of employment to a location
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more than fifty (50) miles from Employee's place of employment immediately
before the Change in Control.
(f) Initial Term. The "Initial Term" shall be the period beginning on
the Effective Date and ending on the first anniversary of the Effective Date. On
the first anniversary of the Effective Date and on each Anniversary Date
thereafter, this Agreement shall be renewed for one additional year, provided,
however, that any such renewal is approved in advance by the Board of Directors
of the Company and the Bank in a duly adopted resolution (hereinafter, the
Initial Term and all subsequent terms are referred to herein as "Term").
Notwithstanding anything herein contained, the Term shall automatically be
terminated as provided in Section 5 hereof or upon the earliest to occur of (i)
the payment of the benefits under Section 3 hereof, or (ii) the expiration of
one (1) year from the Change in Control Date.
(g) Just Cause. "Just Cause" means and shall be limited to the
following:
(1) Employee's willful and continued failure to perform (other
than a failure resulting from Employee's illness or Disability) his stated
employment duties after a demand for substantial performance is delivered to
Employee on behalf of the Board that specifically identifies the manner in which
it alleges that Employee has failed to perform his duties and Employee's failure
to take appropriate actions to correct such failure within thirty (30) days; or
(2) Employee's personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, 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 this Agreement.
For purposes of subsection (g) of Section 2, no act or failure to act on
Employee's part shall be considered "willful" unless done, or omitted to be
done, by Employee not in good faith and without reasonable belief that his
action or omission was in the best interests of Company and Bank.
Notwithstanding the foregoing, Employee shall not be deemed to have been
terminated for Just Cause unless and until the Board has delivered to him a copy
of a notice of termination, and after reasonable notice to him and an
opportunity for him, together with counsel, to be heard before the Board, and at
least two-thirds of the Board finds, in its reasonable opinion, that Employee
was guilty of conduct set forth above in clause (1) or (2) and specifying the
particulars thereof in detail.
3. Termination of Employee's Employment After or Pursuant to a Change in
Control. If Employee terminates his employment for Good Reason immediately
before, after or pursuant to the Change in Control, or if Company terminates
Employee's employment after or pursuant to the Change in Control for a reason
other than Just Cause or Employee's death or Disability, in connection with or
within twelve (12) months after a Change in Control, Employee shall be paid an
amount equal to the annual salary of Employee in effect at the time such
termination occurs. Said sum shall be paid in one lump sum within ten (10) days
of such termination.
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4. Company's Obligation to Provide Information. After termination of
Employee's employment pursuant to any provision of this Agreement, Company and
Bank shall promptly provide Employee with reasonably requested information
relating to his retirement, benefits and payments under this Agreement, and
other post-employment benefits.
5. Termination or Supervision Under Federal Law.
(a) If the Employee 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 ("FDIA"), all
obligations of the Bank under this Agreement shall terminate, as of the
effective date of the order, but vested rights of the parties shall not be
affected.
(b) If the Bank is in default (as defined in Section 3(x)(1) of
FDIA), all obligations under this Agreement shall terminate as of the date of
default; however, this Paragraph shall not affect the vested rights of the
parties.
(c) All obligations under this Agreement shall terminate, except to
the extent that continuation of this Agreement is necessary for the continued
operation of the Bank: (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") enters into an agreement to provide
assistance to or on behalf of the Bank 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 Bank or when the Bank is
determined by the Director of the OTS to be in an unsafe or unsound condition.
Such action shall not affect any vested rights of the parties.
(d) If a notice served under Section 8(e)(3) or (g)(1) of the FDIA
(12 U.S.C. 1818(e)(3) and (g)(1)) suspends and/or temporarily prohibits the
Employee from participating in the conduct of the Bank's affairs, the Bank's
obligations under this Agreement shall be suspended as of the date of such
service, unless stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Bank shall (i) pay the Employee all or part of the
compensation withheld white its contract obligations were suspended, and (ii)
reinstate (in whole or in part) any of its obligations which were suspended.
6. Binding Effect and Assignment. This Agreement shall inure to the
benefit of and shall be binding upon the parties to this Agreement and their
respective executors, administrators, heirs, personal representatives,
successors, and assigns, but neither this Agreement nor any right created by
this Agreement may be assigned or transferred by either party. Notwithstanding
the foregoing, Company and Bank shall assign this Agreement to any person or
entity succeeding to substantially all of the business and assets of Company or
Bank upon a Change in Control, and upon such a Change in Control, Company or
Bank shall obtain the assumption of this Agreement by its successor.
7. Notices. Any notice to a party required or permitted to be given by
this Agreement shall be in writing and shall be deemed given when mailed by
registered or certified mail, if to
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Company or Bank, at the following address: Jefferson Savings Bancorp, Inc.,
00000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000 Attention: Corporate Secretary (or
such other address designated by Company in writing to Employee as provided in
this Section), and, if to Employee, at the address set forth below Employee's
signature (or such other address designated by Employee in writing to Company as
provided in this Section).
8. Severability. If any term, provision, covenant, or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void,
or unenforceable, the remainder of the terms, provisions, covenants, and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired, or invalidated.
9. Amendments. This Agreement may not be modified, amended, altered, or
supplemented except upon the execution and delivery of a written agreement
executed by Company, Bank and Employee.
10. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of Missouri.
11. Integration. This Agreement supersedes all prior agreements between
the parties with respect to the matters covered herein.
12. Counterparts. This Agreement may be signed in two counterparts, each
of which shall be deemed to be an original but which together shall constitute
one and the same instrument.
13. Effect of Headings. The section headings in this Agreement are for
convenience only and shall not affect the construction of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
Company: Bank:
JEFFERSON SAVINGS BANCORP, INC. JEFFERSON HERITAGE BANK
By: /s/ Xxxxx X. XxXxx By: /s/ Xxx X. Xxxxxxxx
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Name: Xxxxx X. XxXxx Name: Xxx X. Xxxxxxxx
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Title: Chairman of the Board & CEO Title: President and Chief Operating
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Officer
Employee: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Address: 00000 Xxxxx Xxx Xx.
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Xxxxxxxxxxxx, XX 00000
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