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AMENDED AND RESTATED SEVERANCE AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT entered into this 30th day of
October, 2003 (the "Effective Date") by and between The Patapsco Bank (the
"Bank"), and ________________ (the "Employee").
WHEREAS, the Employee has heretofore been employed by the Bank as an
executive officer; and
WHEREAS, the Bank 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 Bank; and
WHEREAS, the parties desire by this writing to set forth their
understanding as to their respective rights and obligations in the event of
termination of Employee's employment under the circumstances set forth in this
Agreement.
NOW, THEREFORE, it is AGREED as follows:
1. Change in Control
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(a) Payment in the Event of Change in Control. (1) If the Employee's
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employment is terminated by the Bank, without the Employee's prior written
consent and for a reason other than Just Cause (as defined in Section 2(a)
hereof), in connection with or within twenty-four (24) months after any change
in control of the Bank or the Company, the Employee shall, subject to paragraph
(2) of this Section 1(a), be paid an amount equal to his base salary and bonus
paid in the prior calendar year, but in no event greater than the difference
between (i) the product of 2.99 times his "base amount" as defined in Section
280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code") and
regulations promulgated thereunder (the "Maximum Amount"), and (ii) the sum of
any other parachute payments (as defined under Section 280G(b)(2) of the Code)
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 such termination.
(2) In the event that the Employee and the Bank jointly determine and
agree that the total parachute payments receivable under clauses (i) and (ii) of
Section l(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment
procedure set forth in Section l(a)(1) hereof, the Employee shall determine
which and how much, if any, of the parachute payments to which he is entitled
shall be eliminated or reduced so that the total parachute payments to be
received by the Employee do not exceed the Maximum Amount. If the Employee does
not make his determination within ten business days after receiving a written
request from the Bank, the Bank may make such determination, and shall notify
the Employee promptly thereof. Within five business days of the earlier of the
Bank's receipt of the Employee's determination pursuant to this paragraph or the
Bank's determination in lieu of a determination by the Employee, the Bank shall
pay to or distribute to or for the benefit of the Employee such amounts as are
then due the Employee under this Agreement.
(3) As a result of uncertainty in application of Section 280G of the
Code at the time of payment hereunder, it is possible that such payments will
have been made by the Bank which should not have been made ("Overpayment") or
that additional payments will not have been made by the Bank which should have
been made ("Underpayment"), in each case, consistent with the calculations
required to be made under Section 1(a)(1) hereof. In the event that the
Employee, based upon the assertion by the Internal Revenue Service against the
Employee of a deficiency which the Employee believes has a high probability of
success, determines that an Overpayment has been made, any such Overpayment paid
or distributed by the Bank to or for the benefit of Employee shall be treated
for all purposes as a loan ab initio, which the Employee shall repay to the Bank
together with interest at the applicable federal rate provided for in Section
7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed
to have been made and no amount shall be payable by the Employee to the Bank if
and to the extent such deemed loan and payment would not either reduce the
amount on which the Employee is subject to tax under Section 1 and Section 4999
of the Code or generate a refund of such taxes. In the event that the Employee
and the Bank determine, based upon controlling precedent or other substantial
authority, that an Underpayment has occurred, any such Underpayment shall be
promptly paid by the Bank to or for the benefit of the Employee together with
interest at the applicable federal rate provided for in Section 7872(f)(2)(B) of
the Code.
(4) "Change in Control" shall mean any one of the following events:
(1) the acquisition of ownership, holding or power to vote more than 25% of the
Bank's or Patapsco Bancorp, Inc.'s (the "Company") voting stock, (2) the
acquisition of the ability to control the election of a majority of the Bank's
or the Company's directors, (3) the acquisition of a controlling influence over
the management or policies of the Bank or the Company by any person or
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by persons acting as a "group" (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934) (provided that in the case of (1), (2) and (3)
hereof, ownership or control of the Bank by the Company itself shall not
constitute a "change in control"), or (4) 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 Company or the Bank (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. For purposes of this subparagraph only, the term "person" refers to an
individual or a corporation, partnership, trust, Bank, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization or any other form of
entity not specifically listed herein. The decision of the Bank's non-employee
directors as to whether a change in control has occurred shall be conclusive and
binding.
(b) Change in Control; Voluntary Termination. Notwithstanding any
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other provision of this Agreement to the contrary, the Employee may voluntarily
terminate his employment under this Agreement within twenty-four (24) months
following a change in control of the Bank or the Company, as defined in
paragraph (a)(4) of this Section 1, and the Employee shall thereupon be entitled
to receive the payment described in Section 1(a)(1) and (2) of this Agreement,
within ninety (90) days following the occurrence of 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 fifteen (15) linear 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 Bank to continue to provide the Employee with compensation and
benefits provided for under this Agreement, 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 Bank 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 Bank, if the
Employee is serving on the Board on the date of the change in control; or (vi) a
material diminution or reduction in the Employee's responsibilities or authority
(including reporting responsibilities) in connection with his employment with
the Bank.
(c) Compliance with 12 U.S.C. Section 1828(k). Any payments made to
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the Employee pursuant to this Agreement, or otherwise, are subject to and
conditioned upon their compliance with 12 U.S.C. Section 1828(k) and any
regulations promulgated thereunder.
(d) Term. This Agreement shall remain in effect for the period
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commencing on the Effective Date and ending on the earlier of (i) the date
twenty-four (24) months after the Effective Date, and (ii) the date on which the
Employee terminates employment with the Bank; provided that the Employee's
rights hereunder shall continue following the termination of this employment
with the Bank under any of the circumstances described in Section 1(a) or (b)
hereof. Additionally, on each 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 that the Employee is elected an officer
of the Bank at the meeting of the Bank's Board of Directors held on the date of
the Company's annual meeting of stockholders called for the purpose of electing
the officer position which the Employee holds.
2. Termination or Suspension Under Federal Law.
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(a) Termination for "Just Cause" shall mean termination because of, in
the good faith determination of the Bank'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 "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 Bank.
(b) If the Employee is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Sections 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act ("FDIA")
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(12 U.S.C. 1818(e)(4) or (g)(1)), all obligations of the Bank 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 Bank is 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; 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 Bank as determined by: (i) the appropriate federal banking
agency at the time that the Federal Deposit Insurance Corporation enters into an
agreement to provide assistance to or on behalf of the Bank under the authority
contained in Section 13(c) of the FDIA; or (ii) by the appropriate federal
banking agency at the time it approves a supervisory merger to resolve problems
related to operation of the Bank or when the Bank is determined by the
appropriate federal banking agency 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 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
while its contract obligations were suspended, and (ii) reinstate (in whole or
in part) any of its obligations which were suspended.
(f) The terms of this Section 2 shall prevail over any other provisions
of this Agreement.
3. Expense Reimbursement.
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In the event that any dispute arises between the Employee and the Bank
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 Bank 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 judgment
in favor of the Employee in a court of competent jurisdiction or in binding
arbitration under the rules of the American Arbitration Bank. Such reimbursement
shall be paid within ten (10) days of Employee's furnishing to the Bank 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.
4. 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 Bank 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 Bank or Company.
(b) Since the Bank and the Company are 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 Bank and the Company.
5. Amendments. No amendments or additions to this Agreement shall be binding
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unless made in writing and signed by all of the parties, except as herein
otherwise specifically provided.
6. Applicable Law. Except to the extent preempted by Federal law, the laws
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of the State of Maryland shall govern this Agreement in all respects, whether as
to its validity, construction, capacity, performance or otherwise.
7. Severability. The provisions of this Agreement shall be deemed severable
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and the invalidity or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.
8. 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first hereinabove written.
ATTEST: THE PATAPSCO BANK
By:
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Secretary Its Chairman of the Board
WITNESS: EMPLOYEE
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