EXHIBIT 10.3
FORM OF THREE-YEAR
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement"), made this ___ day of ______________,
200__, by and among LIBERTY BANCORP, INC., a Missouri-chartered corporation (the
"Company") BANKLIBERTY, a federally-chartered financial institution (the
"Bank"), and ____________________("Executive").
WITNESSETH
WHEREAS, Executive serves in a position of substantial responsibility;
WHEREAS, the Company and the Bank wish to assure the services of Executive
for the period provided in this Agreement; and
WHEREAS, Executive is willing to serve in the employ of the Bank on a
full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. EMPLOYMENT. Executive is employed as the President and Chief Executive
Officer of the Company and the Bank. Executive shall perform all duties and
shall have all powers which are commonly incident to the office of President and
Chief Executive Officer or which, consistent with those offices, are delegated
to him by the Board of Directors of the Bank or the Company.
2. LOCATION AND FACILITIES. The Executive will be furnished with the
working facilities and staff customary for executive officers with the title and
duties set forth in Section 1 and as are necessary for him to perform his
duties. The location of such facilities and staff shall be at the principal
administrative offices of the Company and the Bank, or at such other site or
sites customary for such offices.
3. TERM.
a. The term of this Agreement shall be (i) the initial term, consisting
of the period commencing on the date of this Agreement (the
"Effective Date") and ending on the third anniversary of the
Effective Date, plus (ii) any and all extensions of the initial term
made pursuant to this Section 3.
b. Commencing on the first year anniversary date of this Agreement, and
continuing on each anniversary thereafter, the disinterested members
of the boards of directors of the Bank and the Company may extend
the Agreement an additional year such that the remaining term of the
Agreement shall be thirty six (36) months, unless Executive elects
not to extend the term of this Agreement by
giving written notice in accordance with Section 19 of this
Agreement. The Boards of Directors of the Bank and the Company (the
"Boards") will review the Agreement and Executive's performance
annually for purposes of determining whether to extend the
Agreement. The Executive shall receive notice as soon as possible
after such review as to whether the Agreement is to be extended.
4. BASE COMPENSATION.
a. The Bank and the Company agree to pay the Executive during the term
of this Agreement an aggregate base salary at the rate of
$_____________________ per year, payable in accordance with
customary payroll practices of the Bank.
b. The Boards shall review annually the rate of the Executive's base
salary based upon factors they deem relevant, and may maintain or
increase his salary, provided that no such action shall reduce the
rate of salary below the rate in effect on the Effective Date.
c. In the absence of action by the Boards, the Executive shall continue
to receive salary at the annual rate specified on the Effective Date
or, if another rate has been established under the provisions of
this Section 4, the rate last properly established by action of the
Boards under the provisions of this Section 4.
5. BONUSES. The Executive shall be entitled to participate in
discretionary bonuses or other incentive compensation programs that the Company
and the Bank may award from time to time to senior management employees pursuant
to bonus plans or otherwise.
6. BENEFIT PLANS. The Executive shall be entitled to participate in such
life insurance, medical, dental, pension, profit sharing, retirement and
stock-based compensation plans and other programs and arrangements as may be
approved from time to time by the Company and the Bank for the benefit of their
employees.
7. VACATION AND LEAVE.
a. The Executive shall be entitled to vacation and other leave in
accordance with policy for senior executives, or otherwise as
approved by the Boards.
b. In addition to paid vacation and other leave, the Executive shall be
entitled, without loss of pay, to absent himself voluntarily from
the performance of his employment for such additional periods of
time and for such valid and legitimate reasons as the Boards may in
their discretion determine. Further, the Boards may grant to the
Executive a leave or leaves of absence, with or without pay, at such
time or times and upon such terms and conditions as the Boards in
their discretion may determine.
2
8. EXPENSE PAYMENTS AND REIMBURSEMENTS. The Executive shall be reimbursed
for all reasonable out-of-pocket business expenses that he shall incur in
connection with his services under this Agreement upon substantiation of such
expenses in accordance with applicable policies of the Company and the Bank.
9. AUTOMOBILE. During the term of this Agreement, the Executive shall be
entitled to use of an automobile. Executive shall comply with reasonable
reporting and expense limitations on the use of such automobile as may be
established by the Company or the Bank from time to time, and the Company or the
Bank shall annually include on Executive's Form W-2 any amount of income
attributable to Executive's personal use of such automobile.
10. LOYALTY AND CONFIDENTIALITY.
a. During the term of this Agreement Executive: (i) shall devote all
his time, attention, skill, and efforts to the faithful performance
of his duties hereunder; provided, however, that from time to time,
Executive may serve on the boards of directors of, and hold any
other offices or positions in, companies or organizations which will
not present any conflict of interest with the Company or the Bank or
any of their subsidiaries or affiliates, unfavorably affect the
performance of Executive's duties pursuant to this Agreement, or
violate any applicable statute or regulation and (ii) shall not
engage in any business or activity contrary to the business affairs
or interests of the Company and the Bank.
b. Nothing contained in this Agreement shall prevent or limit
Executive's right to invest in the capital stock or other securities
of any business dissimilar from that of the Company and the Bank,
or, solely as a passive, minority investor, in any business.
c. Executive agrees to maintain the confidentiality of any and all
information concerning the operation or financial status of the
Company and the Bank; the names or addresses of any of its
borrowers, depositors and other customers; any information
concerning or obtained from such customers; and any other
information concerning the Company and the Bank to which he may be
exposed during the course of his employment. The Executive further
agrees that, unless required by law or specifically permitted by the
Boards in writing, he will not disclose to any person or entity,
either during or subsequent to his employment, any of the
above-mentioned information which is not generally known to the
public, nor shall he employ such information in any way other than
for the benefit of the Company and the Bank.
11. TERMINATION AND TERMINATION PAY. Subject to Section 12 of this
Agreement, Executive's employment under this Agreement may be terminated in the
following circumstances:
3
a. Death. Executive's employment under this Agreement shall terminate
upon his death during the term of this Agreement, in which event
Executive's estate shall be entitled to receive the compensation due
to the Executive through the last day of the calendar month in which
his death occurred.
b. Retirement. This Agreement shall be terminated upon Executive's
retirement under the retirement benefit plan or plans in which he
participates pursuant to Section 6 of this Agreement or
otherwise.
c. Disability.
i. The Boards or Executive may terminate Executive's employment
after having determined Executive has a Disability. For
purposes of this Agreement, "Disability" means a physical or
mental infirmity that impairs Executive's ability to
substantially perform his duties under this Agreement and that
results in Executive becoming eligible for long-term
disability benefits under any long-term disability plans of
the Company and the Bank (or, if there are no such plans in
effect, that impairs Executive's ability to substantially
perform his duties under this Agreement for a period of one
hundred eighty (180) consecutive days). The Boards shall
determine whether or not Executive is and continues to be
permanently disabled for purposes of this Agreement in good
faith, based upon competent medical advice and other factors
that they reasonably believe to be relevant. As a condition to
any benefits, the Boards may require Executive to submit to
such physical or mental evaluations and tests as it deems
reasonably appropriate.
ii. In the event of such Disability, Executive's obligation to
perform services under this Agreement will terminate. The Bank
will pay Executive, as Disability pay, an amount equal to 100%
of Executive's bi-weekly rate of base salary in effect as of
the date of his termination of employment due to Disability.
Disability payments will be made on a monthly basis and will
commence on the first day of the month following the effective
date of Executive's termination of employment for Disability
and end on the earlier of: (A) the date he returns to
full-time employment at the Bank in the same capacity as he
was employed prior to his termination for Disability; (B) his
death; or (C) upon attainment of age 65. Such payments shall
be reduced by the amount of any short- or long-term disability
benefits payable to the Executive under any other disability
programs sponsored by the Company and the Bank. In addition,
during any period of Executive's Disability, Executive and his
dependents shall, to the greatest extent possible, continue to
be covered under all benefit plans (including, without
limitation, retirement plans and medical, dental and life
insurance plans) of the Company and the Bank, in which
4
Executive participated prior to his Disability on the same
terms as if Executive were actively employed by the Company
and the Bank.
d. Termination for Cause.
i. The Boards may, by written notice to the Executive in the form
and manner specified in this paragraph, terminate his
employment at any time, for "Cause". The Executive shall have
no right to receive compensation or other benefits for any
period after termination for Cause. Termination for "Cause"
shall mean termination because of, in the good faith
determination of the Boards, Executive's:
(1) Personal dishonesty;
(2) Incompetence;
(3) Willful misconduct;
(4) Breach of fiduciary duty involving personal profit;
(5) Intentional failure to perform stated duties;
(6) Willful violation of any law, rule or regulation (other
than traffic violations or similar offenses) or a final
cease-and-desist order; or
(7) Material breach by Executive of any provision of this
Agreement.
ii. Notwithstanding the foregoing, Executive shall not be deemed
to have been terminated for Cause by the Company and the Bank
unless there shall have been delivered to Executive a copy of
a resolution duly adopted at a meeting of such Boards where in
the good faith opinion of the Boards, Executive was guilty of
the conduct described above and specifying the particulars
thereof.
e. Voluntary Termination by Executive. In addition to his other rights
to terminate under this Agreement, Executive may voluntarily
terminate employment during the term of this Agreement upon at least
sixty (60) days prior written notice to the Boards, in which case
Executive shall receive only his compensation, vested rights and
employee benefits up to the date of his termination.
f. Without Cause or With Good Reason.
i. In addition to termination pursuant to Sections 11(a) through
11(e) the Boards, may, by written notice to Executive,
immediately terminate his
5
employment at any time for a reason other than Cause (a
termination "Without Cause") and Executive may, by written
notice to the Boards, immediately terminate this Agreement at
any time within ninety (90) days following an event
constituting "Good Reason" as defined below (a termination
"With Good Reason").
ii. Subject to Section 12 of this Agreement, in the event of
termination under this Section 11(f), Executive shall be
entitled to receive his base salary for the remaining term of
the Agreement paid in one lump sum within ten (10) calendar
days of such termination. Also, in such event, Executive
shall, for the remaining term of the Agreement, receive the
benefits he would have received during the remaining term of
the Agreement under any retirement programs (whether
tax-qualified or non-qualified) in which Executive
participated prior to his termination (with the amount of the
benefits determined by reference to the benefits received by
the Executive or accrued on his behalf under such programs
during the twelve (12) months preceding his termination) and
continue to participate in any benefit plans of the Company or
the Bank that provide health (including medical and dental),
or life insurance, or similar coverage upon terms no less
favorable than the most favorable terms provided to senior
executives of the Company and the Bank during such period. In
the event that the Company and the Bank are unable to provide
such coverage by reason of Executive no longer being an
employee, the Company and the Bank shall provide Executive
with comparable coverage on an individual policy basis.
iii. "Good Reason" shall exist if, without Executive's express
written consent, the Company and the Bank materially breach
any of their respective obligations under this Agreement.
Without limitation, such a material breach shall be deemed to
occur upon any of the following:
(1) A material reduction in Executive's responsibilities or
authority in connection with his employment with the
Company or the Bank;
(2) Assignment to Executive of duties of a non-executive
nature or duties for which he is not reasonably equipped
by his skills and experience;
(3) A reduction in salary or benefits contrary to the terms
of this Agreement, or, following a Change in Control, as
defined in Section 12 of this Agreement, any reduction
in salary or material reduction in benefits below the
amounts to which he was entitled prior to the Change in
Control;
6
(4) Termination of incentive and benefit plans, programs or
arrangements, or reduction of Executive's participation
to such an extent as to materially reduce their
aggregate value below their aggregate value as of the
Effective Date;
(5) A requirement that Executive relocate his principal
business office or his principal place of residence
outside of the area consisting of a fifty (50) mile
radius from the current main office and any branch of
the Bank, or the assignment to Executive of duties that
would reasonably require such a relocation; or
(6) Liquidation or dissolution of the Company or the Bank.
iv. Notwithstanding the foregoing, a reduction or elimination of
the Executive's benefits under one or more benefit plans
maintained by the Company or the Bank as part of a good faith,
overall reduction or elimination of such plans or plans or
benefits thereunder applicably to all participants in a manner
that does not discriminate against Executive (except as such
discrimination may be necessary to comply with law) shall not
constitute an event of Good Reason or a material breach of
this Agreement, provided that benefits of the type or to the
general extent as those offered under such plans prior to such
reduction or elimination are not available to other officers
of the Company and the Bank or any company that controls
either of them under a plan or plans in or under which
Executive is not entitled to participate.
g. Continuing Covenant Not to Compete or Interfere with Relationships.
Regardless of anything herein to the contrary, following a
termination by the Company and the Bank or Executive pursuant to
Section 11(f):
i. Executive's obligations under Section 10(c) of this Agreement
will continue in effect; and
ii. During the period ending on the first anniversary of such
termination, the Executive shall not serve as an officer,
director or employee of any bank holding company, bank,
savings bank, savings and loan holding company, or mortgage
company (any of which, a "Financial Institution") which
Financial Institution offers products or services competing
with those offered by the Bank from any office within fifty
(50) miles from the main office or any branch of the Bank and
shall not interfere with the relationship of the Company and
the Bank and any of its employees, agents, or representatives.
7
12. TERMINATION IN CONNECTION WITH A CHANGE IN CONTROL. For purposes of
this Agreement, a Change in Control means any of the following events:
(i) Merger: The Company merges into or consolidates with another
corporation, or merges another corporation into the Company, and as a
result less than a majority of the combined voting power of the
resulting corporation immediately after the merger or consolidation is
held by persons who were stockholders of the Company immediately
before the merger or consolidation.
(ii) Acquisition of Significant Share Ownership: There is filed or
required to be filed a report on Schedule 13D or another form or
schedule (other than Schedule 13G) required under Sections 13(d) or
14(d) of the Securities Exchange Act of 1934, if the schedule
discloses that the filing person or persons acting in concert has or
have become the beneficial owner of 25% or more of a class of the
Company's voting securities, but this clause (ii) shall not apply to
beneficial ownership of Company voting shares held in a fiduciary
capacity by an entity of which the Company directly or indirectly
beneficially owns 50% or more of its outstanding voting securities.
(iii) Change in Board Composition: During any period of two
consecutive years, individuals who constitute the Company's Board of
Directors at the beginning of the two-year period cease for any reason
to constitute at least a majority of the Company's Board of Directors;
provided, however, that for purposes of this clause (iii), each
director who is first elected by the board (or first nominated by the
board for election by the stockholders) by a vote of at least
two-thirds (2/3) of the directors who were directors at the beginning
of the two-year period shall be deemed to have also been a director at
the beginning of such period; or
(iv) Sale of Assets: The Company sells to a third party all or
substantially all of its assets.
a. Termination. If within the period ending two (2) years after a Change
in Control, (i) the Company or the Bank shall terminate the
Executive's employment Without Cause, or (ii) Executive
voluntarily terminates his employment With Good Reason, the Company or
the Bank shall, within ten calendar days of the termination of
Executive's employment, make a lump-sum cash payment to him equal to
three (3) times the Executive's average Annual Compensation over the
five (5) most recently completed calendar years ending with the year
immediately preceding the effective date of the Change in Control. In
determining Executive's average Annual Compensation, Annual
Compensation shall include base salary and any other taxable income
(paid by the Company and the Bank), including but not limited to
amounts related to the granting, vesting or exercise of restricted
8
stock or stock option awards, commissions, bonuses (whether paid or
accrued for the applicable period), as well as, retirement benefits,
director or committee fees and fringe benefits paid or to be paid to
Executive or paid for Executive's benefit during any such year, profit
sharing, employee stock ownership plan and other retirement
contributions or benefits, including to any tax-qualified plan or
arrangement (whether or not taxable) made or accrued on behalf of
Executive of such year. The cash payment made under this Section 12(a)
shall be made in lieu of any payment also required under Section 11(f)
of this Agreement because of a termination in such period. Executive's
rights under Section 11(f) are not otherwise affected by this Section
12. Also, in such event, the Executive shall, for a thirty-six (36)
month period following his termination of employment, receive the
benefits he would have received over such period under any retirement
programs (whether tax-qualified or nonqualified) in which the
Executive participated prior to his termination (with the amount of
the benefits determined by reference to the benefits received by the
Executive or accrued on his behalf under such programs during the
twelve (12) months preceding the Change in Control) and continue to
participate in any benefit plans of the Company and the Bank that
provide health (including medical and dental), or life insurance, or
similar coverage upon terms no less favorable than the most favorable
terms provided to senior executives of the Bank during such period. In
the event that the Company and the Bank are unable to provide such
coverage by reason of the Executive no longer being an employee, the
Company and the Bank shall provide the Executive with comparable
coverage on an individual policy.
b. The provisions of Section 12 and Sections 14 through 25, including the
defined terms used is such sections, shall continue in effect until
the later of the expiration of this Agreement or two (2) years
following a Change in Control.
13. INDEMNIFICATION AND LIABILITY INSURANCE. Subject to and limited by
Section 26(f) of this Agreement, the Bank and the Company shall
provide the following:
a. Indemnification. The Company and the Bank agree to indemnify the
Executive (and his heirs, executors, and administrators), and to
advance expenses related thereto, to the fullest extent permitted
under applicable law and regulations against any and all expenses and
liabilities reasonably incurred by him in connection with or arising
out of any action, suit, or proceeding in which he may be involved by
reason of his having been a director or Executive of the Company, the
Bank or any of their affiliates (whether or not he continues to be a
director or Executive at the time of incurring any such expenses or
liabilities) such expenses and liabilities to include, but not be
limited to, judgments, court costs, and attorney's fees and the cost
of reasonable settlements, such settlements to be approved by the
Boards, if such action is brought against the Executive in his
capacity as an Executive or director of the Company or the Bank or any
of their
9
subsidiaries. Indemnification for expense shall not extend to matters
for which the Executive has been terminated for Cause. Nothing
contained herein shall be deemed to provide indemnification prohibited
by applicable law or regulation. Notwithstanding anything herein to
the contrary, the obligations of this Section 13 shall survive the
term of this Agreement by a period of six (6) years.
b. Insurance. During the period in which indemnification of the Executive
is required under this Section, the Company and the Bank shall provide
the Executive (and his heirs, executors, and administrators) with
coverage under a directors' and Executives' liability policy at the
expense of the Company and the Bank, at least equivalent to such
coverage provided to directors and senior Executives of the Company
and the Bank.
14. REIMBURSEMENT OF EXECUTIVE'S EXPENSES TO ENFORCE THIS AGREEMENT. The
Company and the Bank shall reimburse the Executive for all reasonable
out-of-pocket expenses, including, without limitation, reasonable attorney's
fees, incurred by the Executive in connection with successful enforcement by the
Executive of the obligations of the Company and the Bank to the Executive under
this Agreement. Successful enforcement shall mean the grant of an award of money
or the requirement that the Company and the Bank take some action specified by
this Agreement: (i) as a result of court order; or (ii) otherwise by the Company
and the Bank following an initial failure of the Company and the Bank to pay
such money or take such action promptly after written demand therefor from the
Executive stating the reason that such money or action was due under this
Agreement at or prior to the time of such demand.
15. LIMITATION OF BENEFITS UNDER CERTAIN CIRCUMSTANCES. If the payments
and benefits pursuant to Section 12 of this Agreement, either alone or together
with other payments and benefits which the Executive has the right to receive
from the Company and the Bank, would constitute a "parachute payment" under
Section 280G of the Code, the payments and benefits pursuant to Section 12 shall
be reduced or revised, in the manner determined by the Executive, by the amount,
if any, which is the minimum necessary to result in no portion of the payments
and benefits under Section 12 being non-deductible to the Company and the Bank
pursuant to Section 280G of the Code and subject to the excise tax imposed under
Section 4999 of the Code. The determination of any reduction in the payments and
benefits to be made pursuant to Section 12 shall be based upon the opinion of
the Company and the Bank's independent public accountants and paid for by the
Company and the Bank. In the event that the Company, the Bank and/or the
Executive do not agree with the opinion of such counsel, (i) the Company and the
Bank shall pay to the Executive the maximum amount of payments and benefits
pursuant to Section 12, as selected by the Executive, which such opinion
indicates there is a high probability of such payments and benefits being
deductible to the Company and the Bank and not subject to the imposition of the
excise tax imposed under Section 4999 of the Code and (ii) the Company and the
Bank may request, and the Executive shall have the right to demand that they
request, a ruling from the IRS as to whether the disputed payments and benefits
pursuant to Section 12 have such consequences. Any such request for a ruling
from the IRS shall be promptly prepared
10
and filed by the Company and the Bank, but in no event later than thirty (30)
days from the date of the opinion of counsel referred to above, and shall be
subject to the Executive's approval prior to filing, which shall not be
unreasonably withheld. The Company, the Bank and the Executive agree to be bound
by any ruling received from the IRS and to make appropriate payments to each
other to reflect any such rulings, together with interest at the applicable
federal rate provided for in Section 7872(f)(2) of the Code.
16. INJUNCTIVE RELIEF. If there is a breach or threatened breach of
Section 11(g) of this Agreement or the prohibitions upon disclosure contained in
Section 10(c) of this Agreement, the parties agree that there is no adequate
remedy at law for such breach, and that the Company and the Bank shall be
entitled to injunctive relief restraining the Executive from such breach or
threatened breach, but such relief shall not be the exclusive remedy hereunder
for such breach. The parties hereto likewise agree that the Executive, without
limitation, shall be entitled to injunctive relief to enforce the obligations of
the Company and the Bank under this Agreement.
17. SUCCESSORS AND ASSIGNS.
a. This Agreement shall inure to the benefit of and be binding upon any
corporate or other successor of the Company and the Bank which shall
acquire, directly or indirectly, by merger, consolidation, purchase
or otherwise, all or substantially all of the assets or stock of the
Company and the Bank.
b. Since the Company and the Bank are contracting for the unique and
personal skills of Executive, Executive shall be precluded from
assigning or delegating his rights or duties hereunder without first
obtaining the written consent of the Company and the Bank.
18. NO MITIGATION. Executive shall not be required to mitigate the amount
of any payment provided for in this Agreement by seeking other employment or
otherwise and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to Executive in any subsequent employment.
19. NOTICES. All notices, requests, demands and other communications in
connection with this Agreement shall be made in writing and shall be deemed to
have been given when delivered by hand or 48 hours after mailing at any general
or branch United States Post Office, by registered or certified mail, postage
prepaid, addressed to the Company and/or the Bank at their principal business
offices and to Executive at his home address as maintained in the records of the
Company and the Bank.
20. NO PLAN CREATED BY THIS AGREEMENT. Executive, the Company and the Bank
expressly declare and agree that this Agreement was negotiated among them and
that no provision or provisions of this Agreement are intended to, or shall be
deemed to, create any plan for purposes of the Employee Retirement Income
Security Act or any other law or regulation,
11
and each party expressly waives any right to assert the contrary. Any assertion
in any judicial or administrative filing, hearing, or process that such a plan
was so created by this Agreement shall be deemed a material breach of this
Agreement by the party making such an assertion.
21. AMENDMENTS. No amendments or additions to this Agreement shall be
binding unless made in writing and signed by all of the parties, except as
herein otherwise specifically provided.
22. APPLICABLE LAW. Except to the extent preempted by Federal law, the
laws of the State of Missouri shall govern this Agreement in all respects,
whether as to its validity, construction, capacity, performance or otherwise.
23. 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.
24. HEADINGS. Headings contained herein are for convenience of reference
only.
25. ENTIRE AGREEMENT. This Agreement, together with any understanding or
modifications thereof as agreed to in writing by the parties, shall constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof, other than written agreements with respect to specific plans, programs
or arrangements described in Sections 5 and 6.
26. REQUIRED PROVISIONS. In the event any of the foregoing provisions of
this Section 26 are in conflict with the terms of this Agreement, this Section
26 shall prevail.
a. The Bank's board of directors may terminate Executive's
employment at any time, but any termination by the Bank, other
than Termination for Cause, shall not prejudice Executive's
right to compensation or other benefits under this Agreement.
Executive shall not have the right to receive compensation or
other benefits for any period after Termination for Cause as
defined in Section 11(d) hereinabove.
b. If Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's
affairs by a notice served under Section 8(e)(3) or 8(g)(1) of
the Federal Deposit Insurance Act, 12 U.S.C. Section
1818(e)(3) or (g)(1); the Bank's obligations under this
contract shall be suspended as of the date of service, unless
stayed by appropriate proceedings. If the charges in the
notice are dismissed, the Bank may in its discretion: (i) pay
Executive all or part of the compensation withheld while their
contract obligations were suspended; and (ii) reinstate (in
whole or in part) any of the obligations which were suspended.
12
c. If Executive 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, 12 U.S.C. Section 1818(e)(4) or (g)(1), all
obligations of the Bank under this contract shall terminate as
of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
d. If the Bank is in default as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act, 12 U.S.C. Section 1813(x)(1)
all obligations of the Bank under this contract shall
terminate as of the date of default, but this paragraph shall
not affect any vested rights of the contracting parties.
e. All obligations under this contract shall be terminated,
except to the extent determined that continuation of the
contract is necessary for the continued operation of the Bank:
(i) by the Director of the OTS (or his designee), at the time
the FDIC enters into an agreement to provide assistance to or
on behalf of the Bank under the authority contained in Section
13(c) of the Federal Deposit Insurance Act, 12 U.S.C.
Section 1823(c); or (ii) by the Director of the OTS (or his
designee) at the time the Director (or his designee) approves
a supervisory merger to resolve problems related to the
operations of the Bank or when the Bank is determined by the
Director to be in an unsafe or unsound condition. Any rights
of the parties that have already vested, however, shall not be
affected by such action.
f. Any payments made to employees pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their
compliance with 12 U.S.C. Section 1828(k) and FDIC regulation
12 C.F.R. Part 359, Golden Parachute and Indemnification
Payments.
g. Notwithstanding anything in this Agreement to the contrary, if
the Company or the Bank in good faith determines that amounts
that, as of the effective date of the Executive's termination
of employment are or may become payable to the Executive upon
termination of his employment hereunder are required to be
suspended or delayed for six (6) months in order to satisfy
the requirements of Section 409A of the Internal Revenue Code,
then the Company or the Bank will so advise the Executive, and
any such payments shall be suspended and accrued for six
months, whereupon they shall be paid to the Executive in a
lump sum (together with interest thereon at the
then-prevailing prime rate).
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first set forth above.
Attest: LIBERTY BANCORP, INC.
By:
----------------------------- ---------------------------
Attest: BANKLIBERTY
By:
----------------------------- ---------------------------
Witness: EXECUTIVE
----------------------------- -------------------------------
14
