EXHIBIT 10.9
SALIDA BUILDING & LOAN ASSOCIATION
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Change-in-Control
Protective Agreement with
Xxxxxxx X. XxXxx
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THIS AGREEMENT entered into this 30/th/ day of April, 1998, by and between
Salida Building & Loan Association (the "Association") and Xxxxxxx X. XxXxx (the
"Employee"), effective on the closing date of the Association's conversion from
mutual to stock form (the "Effective Date").
WHEREAS, the Employee has heretofore been employed by the Association as an
executive officer, and the Association deems it to be in its best interest to
enter into this Agreement as additional incentive to the Employee to continue as
an executive employee of the Association; and
WHEREAS, the parties desire by this writing to set forth their
understanding as to their respective rights and obligations in the event a
change of control occurs with respect to the Association or High Country
Bancorp, Inc. (the "Company").
NOW, THEREFORE, the undersigned parties AGREE as follows:
1. Defined Terms
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When used anywhere in the Agreement, the following terms shall have
the meaning set forth herein.
(a) "Change in Control" shall mean any one of the following events:
(i) the acquisition of ownership, holding or power to vote more than 25% of the
voting stock of the Association or the Holding Company thereof, (ii) the
acquisition of the ability to control the election of a majority of the
Association's or the Company's Directors, (iii) the acquisition of a controlling
influence over the management or policies of the Association or of the 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), or (iv) during any period of two
consecutive years, individuals (the "Continuing Directors") who at the beginning
of such period constitute the Board of Directors of the Association or of the
Company (the "Existing Board") 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 Existing 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, the Company's ownership of
the Association shall not of itself constitute a Change in Control for purposes
of the Agreement. For purposes of this paragraph only, the term "person" refers
to an
individual or a corporation, partnership, trust, association, joint venture,
pool, syndicate, sole proprietorship, unincorporated organization or any other
form of entity not specifically listed herein.
Notwithstanding the foregoing, a "Change in Control" shall not be deemed to
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occur solely by reason of a transaction in which the Association converts to the
stock form of organization, or creates an independent holding company in
connection therewith. The decision of the Board as to whether a Change in
Control has occurred shall be conclusive and binding.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and as interpreted through applicable rulings and regulations
in effect from time to time.
(c) "Code (S)280G Maximum" shall mean product of 2.99 and his "base
amount" as defined in Code (S)280G(b)(3).
(d) "Good Reason" shall mean any of the following events, which has
not been consented to in advance by the Employee in writing: (i) the requirement
that the Employee move his personal residence, or perform his principal
executive functions, more than thirty (30) miles from his primary office as of
the date of the Change in Control; (ii) a material reduction in the Employee's
base compensation as in effect on the date of the Change in Control or as the
same may be increased from time to time; (iii) the failure by the Association or
the Company to continue to provide the Employee with compensation and benefits
provided for on the date of the Change in Control, as the same may be increased
from time to time, or with benefits substantially similar to those provided to
him under any of the employee benefit plans in which the Employee now or
hereafter becomes a participant, or the taking of any action by the Association
or the Company which would directly or indirectly reduce any of such benefits or
deprive the Employee of any material fringe benefit enjoyed by him at the time
of the Change in Control; (iv) the assignment to the Employee of duties and
responsibilities materially different from those normally associated with his
position; (v) a failure to elect or reelect the Employee to the Board of
Directors of the Association or the Company, if the Employee is serving on such
Board on the date of the Change in Control; (vi) a material diminution or
reduction in the Employee's responsibilities or authority (including reporting
responsibilities) in connection with his employment with the Association or the
Company; or (vii) a material reduction in the secretarial or other
administrative support of the Employee.
(e) "Just Cause" shall mean, in the good faith determination of the
Association's Board of Directors, 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 this
Agreement. The Employee shall have no right to receive compensation or other
benefits for any period after termination for Just Cause. No act, or failure to
act, on the Employee's part shall be considered
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"willful" unless he has acted, or failed to act, with an absence of good faith
and without a reasonable belief that his action or failure to act was in the
best interest of the Association and the Company.
(f) "Protected Period" shall mean the period that begins on the date
six months before a Change in Control and ends on the later of the first annual
anniversary of the Change in Control or the expiration date of this Agreement.
(g) "Trust" shall mean a grantor trust designed in accordance with
Revenue Procedure 92-64 and having a trustee independent of the Association and
the Company,
2. Trigger Events
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The Employee shall be entitled to collect the severance benefits set forth
in Section 3 of this Agreement in the event that (i) the Employee voluntarily
terminates employment either for any reason within the 30-day period beginning
on the date of a Change in Control, (ii) the Employee voluntarily terminates
employment within 90 days of an event that both occurs during the Protected
Period and constitutes Good Reason, or (iii) the Association, the Company, or
their successor(s) in interest terminate the Employee's employment for any
reason other than Just Cause during the Protected Period.
3. Amount of Severance Benefit
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If the Employee becomes entitled to collect severance benefits pursuant to
Section 2 hereof, the Association shall pay the Employee a severance benefit
equal to the Employee's annual salary then in effect, provided that no amount
shall be paid in excess of the difference between the Code (S)280G Maximum and
the sum of any other "parachute payments" as defined under Code (S)280G(b)(2)
that the Employee receives on account of the Change in Control. Said sum shall
be paid in one lump sum within ten (10) days of the later of the date of the
Change in Control and the Employee's last day of employment with the Association
or the Company.
In the event that the Employee and the Association agree that the Employee
has collected an amount exceeding the Code (S)280G Maximum, the parties may
jointly agree in writing that such excess shall be treated as a loan ab initio
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which the Employee shall repay to the Association, on terms and conditions
mutually agreeable to the parties, together with interest at the applicable
federal rate provided for in Section 7872(f)(2)(B) of the Code.
4. Funding of Grantor Trust upon Change in Control
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Not later than ten business days after a Change in Control, the Association
shall (i) deposit in a Trust an amount equal to the Code (S)280G Maximum, unless
the Employee has previously provided a written release of any claims under this
Agreement, and (ii) provide the trustee of the Trust with a written direction to
hold said amount and any investment return thereon in a
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segregated account for the benefit of the Employee, and to follow the procedures
set forth in the next paragraph as to the payment of such amounts from the
Trust. Upon the earlier of the Trust's final payment of all amounts due under
the following paragraph or the date 15 months after the Change in Control, the
trustee of the Trust shall pay to the Association the entire balance remaining
in the segregated account maintained for the benefit of the Employee. The
Employee shall thereafter have no further interest in the Trust.
During the 12-consecutive month period after a Change in Control, the
Employee may provide the trustee of the Trust with a written notice requesting
that the trustee pay to the Employee an amount designated in the notice as being
payable pursuant to this Agreement. Within three business days after receiving
said notice, the trustee of the Trust shall send a copy of the notice to the
Association via overnight and registered mail return receipt requested. On the
tenth (10th) business day after mailing said notice to the Association, the
trustee of the Trust shall pay the Employee the amount designated therein in
immediately available funds, unless prior thereto the Association provides the
trustee with a written notice directing the trustee to withhold such payment.
In the latter event, the trustee shall submit the dispute to non-appealable
binding arbitration for a determination of the amount payable to the Employee
pursuant to this Agreement, and the costs of such arbitration shall be paid by
the Association. The trustee shall choose the arbitrator to settle the dispute,
and such arbitrator shall be bound by the rules of the American Arbitration
Association in making his determination. The parties and the trustee shall be
bound by the results of the arbitration and, within three days of the
determination by the arbitrator, the trustee shall pay from the Trust the
amounts required to be paid to the Employee and/or the Association, and in no
event shall the trustee be liable to either party for making the payments as
determined by the arbitrator.
5. Term of the Agreement. This Agreement shall remain in effect for the
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period commencing on the Effective Date and ending on the earlier of (i) the
date 36 months after the Effective Date, and (ii) the date on which the Employee
terminates employment with the Association; provided that the Employee's rights
hereunder shall continue following the termination of this employment with the
Association under any of the circumstances described in Section 2 hereof.
Additionally, on each annual anniversary date from the Effective Date, the term
of this Agreement shall be extended for an additional one-year period beyond the
then effective expiration date provided the Board of Directors of the
Association determines in a duly adopted resolution that the performance of the
Employee has met the requirements and standards of the respective Boards, and
that this Agreement shall be extended.
6. Termination or Suspension Under Federal Law.
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(a) Any payments made to the Employee pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with both 12
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U.S.C. Section 1828(k) and any regulations promulgated thereunder, and
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Regulatory Bulletin 27A, but only to the extent required thereunder on the date
any payment is required pursuant to this Agreement.
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(b) If the Employee is removed and/or permanently prohibited from
participating in the conduct of the Association'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) or (g)(1)), all obligations of the Association 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 Association 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.
(d) All obligations under this Agreement shall terminate, except to
the extent that continuation of this Agreement is necessary for the continued
operation of the Association: (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 Association 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 Association or when the Association
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.
(e) 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 Association's affairs, the
Association'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 Association shall (i) pay the Employee 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.
7. Expense Reimbursement.
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In the event that any dispute arises between the Employee and the
Association as to the terms or interpretation of this Agreement, whether
instituted by formal legal proceedings or otherwise, including any action that
the Employee takes to enforce the terms of this Agreement or to defend against
any action taken by the Association or the Company, the Employee shall be
reimbursed for all costs and expenses, including reasonable attorneys' fees,
arising from such dispute, proceedings or actions, provided that the Employee
shall obtain a final judgement in favor of the Employee in a court of competent
jurisdiction or in binding arbitration under the rules of the American
Arbitration Association. Such reimbursement shall be paid within ten (10) days
of Employee's furnishing to the Association and the Company written evidence,
which may be in the form, among other things, of a cancelled check or receipt,
of any costs or expenses incurred by the Employee.
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8. Successors and Assigns.
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(a) This Agreement shall inure to the benefit of and be binding upon
any corporate or other successor of the Association or Company which shall
acquire, directly or indirectly, by merger, consolidation, purchase or
otherwise, all or substantially all of the assets or stock of the Association or
Company.
(b) Since the Association is contracting for the unique and personal
skills of the Employee, the Employee shall be precluded from assigning or
delegating his rights or duties hereunder without first obtaining the written
consent of the Association.
9. Amendments. No amendments or additions to this Agreement shall be
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binding unless made in writing and signed by all of the parties, except as
herein otherwise specifically provided.
10. Applicable Law. Except to the extent preempted by Federal law, the
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laws of the State of Colorado shall govern this Agreement in all respects,
whether as to its validity, construction, capacity, performance or otherwise.
11. Severability. The provisions of this Agreement shall be deemed
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severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
12. Entire Agreement. This Agreement, together with any understanding or
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modifications thereof as agreed to in writing by the parties, shall constitute
the entire agreement between the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first hereinabove written.
ATTEST: SALIDA BUILDING & LOAN ASSOCIATION
/s/ Xxxxxxx X. Xxxxx By /s/ Xxxxx X. Xxxxx
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Secretary Its President
WITNESS:
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. XxXxx
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Xxxxxxx X. XxXxx
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