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EXHIBIT 10.3
CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT ("Agreement") is made and
entered into as of this _________ day of ____________________, 1996, by and
between 1st SAVINGS BANK, a federally chartered savings institution (which,
together with any successor thereto which executes and delivers the assumption
agreement provided for in Section 11(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 "Bank"), and ______________________ (the
"Employee") whose residence address is __________________.
WHEREAS, the Employee is currently serving as the
_________________________ of the Bank; and
WHEREAS, the Board of Directors of the Bank recognizes that,
as is the case with publicly held corporations generally, the possibility of a
change in control of its parent, Sho-Me Financial Corp. (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 Bank and its
stockholder; and
WHEREAS, the Board of Directors of the Bank believes it is in the best
interests of the Bank to enter into this Agreement with the Employee in order
to assure continuity of management of the Bank and to reinforce and encourage
the continued attention and dedication of the Employee to his assigned duties
without distraction in the face of potentially disruptive circumstances arising
from the possibility of a change in control of the Holding Company, although no
such change is now contemplated; and
WHEREAS, the Board of Directors of the Bank 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:
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1. TERM OF AGREEMENT.
The term of this Agreement shall be deemed to have commenced as of the
date hereof and shall continue for a period of three years thereafter.
Commencing on the first annual anniversary date of this Agreement and
continuing at each annual anniversary date thereafter, this Agreement shall be
extended for a period of one year in addition to the then-remaining term of
employment under this Agreement, unless either the Bank 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.
Notwithstanding any other statement or provision in this Agreement to
the contrary, beginning on the first annual anniversary date of this Agreement,
this Agreement will not be automatically extended unless, prior thereto, the
Board of Directors of the Bank reviews and approves such extension.
2. PAYMENTS TO THE EMPLOYEE UPON CHANGE IN CONTROL.
(a) In the event of the involuntary termination of the Employee's
employment, other than for cause, as defined in Section 2(d) hereof, occurring
within twelve months of a change in control (as herein defined) of the Bank or
the Holding Company, the provisions of Section 3 shall apply.
(b) A "change in control" of the Bank or the Holding Company is
defined solely as 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.
Section 574.4, or any successor regulation, of the Bank 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. Section
574.3, or any successor regulation.
(c) The Employee's employment under this Agreement may be terminated
at any time by the Board of Directors of the Bank. The terms "involuntary
termination" or "involuntarily
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terminated" in this Agreement shall refer to the termination of the employment
of Employee without his express written consent. In addition, a material
diminution of the Employee's benefits or a material adverse change in the
quality of the work environment which would hamper the Employee's ability to
perform his job effectively shall be deemed and shall constitute an involuntary
termination of employment to the same extent as express notice of such
involuntary termination. By way of example and not by way of limitation, any
of the following actions, if unreasonable or materially adverse to the
Employee, shall constitute such diminution or interference unless consented to
in writing by the Employee: (1) change in the principal workplace of the
Employee to a location outside of a 30 mile radius from the Bank's headquarters
office as of the date hereof; (2) a material reduction or 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 Bank or the Holding Company; (3) a material permanent
increase in the required hours of work or the workload of the Employee; (4) a
material demotion of the employee; or (5) a material reduction in the number or
seniority of other Bank personnel reporting to the Employee or a material
reduction in the frequency with which, or in the nature of the matters with
respect to which, such personnel are to report to the Employee, other than as
part of a Bank- or Holding Company-wide reduction in staff.
(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
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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 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 Bank 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.
(a) In the event of the involuntary termination of the Employee's
employment, other than for cause, occurring within twelve months of a change in
control of the Bank or the Holding Company, the Bank 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 two hundred and ninety-nine percent (299%) of the
Employee's current annual base salary. At the election of the Employee, such
payment may be made, on a pro rata basis, semi-monthly during the twelve (12)
months following the Employee's termination.
(b) In the event of the involuntary termination of the Employee's
employment, other than for cause, occurring within twelve months of a change in
control of the Bank or the Holding Company, the Bank shall cause life and
health insurance coverage (substantially similar to the coverage maintained by
the Bank for the Employee prior to his severance) to be maintained for a period
of 12 months or for the remaining term of the Agreement, whichever is greater.
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4. CERTAIN REDUCTION OF PAYMENTS BY THE BANK.
(a) Notwithstanding any other provisions of this Agreement, if
payments and benefits under this Agreement, together with any other payments
and benefits received or to be received by the Employee in connection with a
change in control, would cause any amount to be nondeductible by the Bank or
the Holding Company for federal income tax purposes pursuant to Section 280G of
the Code, then payments and benefits under this Agreement shall be reduced (not
less than zero) to the extent necessary so as to maximize payments and benefits
to the Employee without causing any amount to become nondeductible by the Bank
or the Holding Company by reason of Section 280G of the Internal Revenue Code
of 1986 as amended. The Employee shall determine the allocation of such
reduction among payments and benefits to the Employee.
(b) Notwithstanding any other provisions of this Agreement, payments
under Section 3 of this Agreement shall not exceed three times the Employee's
average annual compensation based on the most recent five taxable years.
(c) 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.
1828(k) and any regulations promulgated thereunder.
(d) So long as 12 C.F.R. Section 563.39(b) (1995) remains in effect
and applicable to the Bank, in the event that any of the termination provisions
of this Agreement conflict with 12 C.F.R. Section 563.39(b) (1995), the latter
shall prevail.
5. REQUIRED REGULATORY PROVISIONS.
(a) The Bank may terminate the Employee's employment at any time, but
any termination by the Bank, other than a termination for cause, shall not
prejudice the Employee's right to compensation or other benefits under this
Agreement. The Employee shall not have the right to
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receive compensation or other benefits for any period after a termination for
cause as defined in Section 2(d) hereinabove.
(b) If the Employee 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 (g)(1) of the Federal Deposit Insurance Act
("FDIA"), 12 U.S.C. Section 1818(e)(3) and (g)(1), the Bank'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 Bank 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.
(c) If the Employee is removed from office and/or permanently
prohibited from participating in the conduct of the Bank's affairs by an order
issued under Section 8(e)(4) or (g)(1) of the FDIA, 12 U.S.C. Section
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 vested rights of the
parties shall not be affected.
(d) If the Bank 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.
(e) 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 Bank: (i) by the Director or his or her designee,
at the time the Federal Deposit Insurance Corporation ("FDIC") or the
Resolution Trust Corporation ("RTC") at the time the FDIC or the RTC 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 Director of
the Office of Thrift Supervision ("OTS") or his or her designee at the time the
Director or his or her designee approves a supervisory merger to resolve
problems
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related to operation 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 any such action.
6. REINSTATEMENT OF BENEFITS UNDER SECTION 5(b).
In the event the Employee is suspended and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice described
in Section 5(b) hereof (the "Notice") during the term of this Agreement and a
change in control occurs, the Bank will assume its obligation to pay and the
Employee will be entitled to receive all of the termination benefits provided
for under Section 3 of this Agreement upon the Bank's receipt of a dismissal of
charges in the Notice.
7. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior agreement between the Bank and the Employee,
except that this Agreement shall not affect or operate to reduce any benefit or
compensation inuring to the Employee of a kind elsewhere provided. No
provision of this Agreement shall be interpreted to mean that the Employee is
subject to receiving fewer benefits than those available to him without
reference to this Agreement.
8. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit
of, the Employee, the Bank and their respective successors and assigns.
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9. MODIFICATION AND WAIVER.
(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.
10. NO MITIGATION.
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.
11. NO ASSIGNMENTS.
(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 Bank 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 Bank, 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 Bank would be required to perform it if no such succession or
assignment had taken place. Failure of the Bank 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 Bank in the same amount and on the same terms as
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the compensation pursuant to Section 3 hereof. For purposes of implementing
the provisions of Section 11(a), the date on which any such succession becomes
effective shall be deemed the Date of Termination.
(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.
12. NOTICE.
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 respective
addresses set forth on the first page of this Agreement (provided that all
notices to the Bank shall be directed to the attention of the Board of
Directors of the Bank with a copy to the Secretary of the Bank), or to such
other address as either party may have furnished to the other in writing in
accordance herewith.
13. AMENDMENTS.
No amendments or additions to this Agreement shall be binding unless
in writing and signed by both parties, except as herein otherwise provided.
14. PARAGRAPH HEADINGS.
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.
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15. 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.
16. GOVERNING LAW.
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.
17. ARBITRATION.
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.
18. REIMBURSEMENT.
In the event the Bank purports to terminate the Employee for cause,
but it is determined by a court of competent jurisdiction or by an arbitrator
pursuant to Section 17 that cause did not exist for such termination, or if in
any event it is determined by any such court or arbitrator that the Bank 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 attorneys' 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
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THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH
MAY BE ENFORCED BY THE PARTIES.
ATTEST: 1st SAVINGS BANK
_____________________________________ By: __________________________________
Xxxxxxx Xxxxxxx, Secretary Xxxxx Xxxxx Xxxxx, Jr., Chairman
of the Board of Directors
WITNESS: EMPLOYEE
_____________________________________ By: __________________________________
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