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EXHIBIT 10.1
CHANGE OF CONTROL SEVERANCE AGREEMENT
THIS CHANGE OF CONTROL SEVERANCE AGREEMENT (the "Agreement") made this
29th day of November, 2007 (the "Effective Date") by and between Baltimore
County Savings Bank, F.S.B. (the "Bank"), BCSB Bankcorp, Inc. (the "Company")
and Xxxxxxx Xxxx (the "Executive").
WHEREAS, the Executive is employed as the Executive Vice President and
Chief Financial Officer of the Bank and has been appointed Executive Vice
President and Chief Financial Officer of the Company and Baltimore County
Savings Bank, MHC (the "MHC"); and
WHEREAS, the Bank and the Company deem it to be in their best interests
to provide the Executive with security in the event of a Change of Control (as
defined herein), and thereby to facilitate his retention and insure an orderly
transition following a Change of Control: and
WHEREAS, the parties desire by the Agreement to set forth their
understanding as to their respective rights and obligations in the event the
Executive's employment terminates or is changed under the circumstances set
forth herein,
NOW, THEREFORE, it is AGREED as follows:
1. Definitions. For purposes of this Agreement, the following terms
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have the meaning set forth below:
(a) "Change in Duties" shall mean any one or more of the following:
(i) a significant adverse change in the status, title, position(s),
responsibilities, or scope of the Executive's authorities or duties
from those applicable to him immediately prior to the date on which a
Change of Control occurs;
(ii) assignment to the Executive of any duties or responsibilities
which are inconsistent with the Executive's status, title, or
position(s) as in effect immediately prior to the date on which a
Change of Control occurs;
(iii) a material reduction in the Executive's total compensation
from that provided to him immediately prior to the date on which a
Change of Control occurs:
(iv) a diminution in the Executive's eligibility to participate in
bonus, incentive award, and other compensation plans which provide
opportunities to receive compensation from the opportunities under any
such plans in which the Executive was participating immediately prior
to the date on which a Change of Control occurs;
(v) a change in the location of the Executive's principal place of
employment by the Bank or its subsidiaries and affiliates by more than
30 miles from the location
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where he was principally employed immediately prior to the date on
which a Change of Control occurs; or
(vi) a reasonable determination by the Boards of Directors of the
Bank and Company that, as a result of a Change of Control and change in
circumstances thereafter significantly affecting the Executive's
position, the Executive is unable to exercise the authorities, powers,
functions or duties attached to his position immediately prior to the
date on which a Change of Control occurs.
(b) A "Change of Control" shall be deemed to have occurred if:
(i) the acquisition of ownership, holding or power to vote more
than 25% of the Bank's or the Company's voting stock;
(ii) the acquisition of the ability to control the election of a
majority of the Bank's or the Company's directors;
(iii) the acquisition of a controlling influence over the
management or policies of the Bank or 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 Bank or 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, in the case of (i), (ii) and (iii)
hereof, ownership or control of the Bank by the Company itself shall not
constitute a Change of Control. 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. The
decision of the non-employee directors of the Bank and the Company as to whether
or not a Change of Control has occurred shall be conclusive and binding.
(c) "Company" shall mean BCSB Bankcorp, Inc. or any holding company
that becomes sole owner of the Bank.
(d) "Covered Period" shall mean a period equal to twelve (12) months
before the occurrence of a Change of Control and eighteen (18) months after the
occurrence of a Change of Control.
(e) "Involuntary Termination" shall mean (i) any involuntary
termination, or (ii) a resignation by the Executive within thirty (30) days
following any Change in Duties; provided,
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however, that an Involuntary Termination shall not include either a Termination
for Cause, or any termination as a result of death, disability, or normal
retirement on or after attainment of age sixty-five (65) pursuant to a
retirement plan in which the Executive was participating prior to any Change of
Control.
(f) "Termination for Cause" shall include termination because OF the
officer or 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 or any other Agreement
between Executive and the Bank.
(g) The term "Bank" refers to the Bank and/or any succession in
interest or any assignees or transferees thereof.
2. 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
thirty-six (36) months after the Effective Date, and (ii) the date on which the
Executive voluntarily terminates employment with the Bank. Additionally, on each
annual anniversary date from the Effective Date the term of this Agreement may
be extended for an additional one (1) year period beyond the then effective
expiration date provided the Board of Directors of the Bank determines in a duly
adopted resolution that the performance of the Executive has met the Board's
requirements and standards, that it is in the Bank's best interests to extend
this Agreement, and that this Agreement shall be extended.
3. Severance Payment on Change of Control. If there is a Change of
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Control and if within the Covered Period as defined herein (i) a Change in
Duties as defined herein occurs, or (ii) an Involuntary Termination as defined
herein occurs, or (iii) the Executive voluntarily terminates employment for any
reason within the 30-day period beginning on the date of a Change of Control,
then in that event the Executive shall
(a) be paid an amount equal to 2.99 times the annualized cash
compensation being paid to the Executive in the immediately preceding twelve
(12) month period (excluding board fees and bonuses), and
(b) receive at the Executive's sole and exclusive election either (i)
cash in an amount equal to the cost to the Executive of obtaining all health,
life, disability and other benefits which the Executive would have been eligible
to participate in through the second annual anniversary date of his termination
of employment, based upon the benefit levels substantially equal to those that
the Bank provided for the Executive at the date of the Change of Control, or
(ii) continued participation in such Bank benefit plans through the second
annual anniversary date of his termination of employment, but only to the extent
the Executive continues to qualify for participation therein.
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4. Timing of Severance Payment. Any cash payable to the Executive under
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Section 3(a) or (b) of this Agreement shall be payable in a lump sum within 10
calendar days after the Executive's termination of employment, provided,
however, if, at the time of the Executive's termination of employment, the
Executive is a "specified employee" (as defined in Section 409A of the Internal
Revenue Code of 1986) and the payment under Section 3(a) is subject to Section
409A of the Internal Revenue Code of 1986, then such payment shall not be made
until six months and one day following the date of the Executive terminates
employment, except as may otherwise be permitted under Section 409A of the
Internal Revenue Code of 1986."
5. Amendment and Termination.
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(a) Before a Change of Control. The Boards of Directors of the Bank and
the Company may, in their sole discretion, amend this Agreement without the
consent of the Executive at any time prior to a Change of Control; provided,
however, no amendment may be made by the Bank and the Company if it operates to
reduce the Executive's rights hereunder,
(b) After a Change of Control. This Agreement may not be terminated or
amended by the Bank, the Company or its successor following a Change of Control,
unless the Executive consents in writing to be bound thereby.
(c) Termination or Suspension Under Federal Law. Notwithstanding any
other provision of this Agreement to the contrary -
(i) Notwithstanding anything in this Agreement to the contrary, in
no event shall the aggregate payments or benefits to be made or
afforded to the Executive under Section 3 of this Agreement (the
"Termination Benefits") constitute an "excess parachute payment" under
Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code"), or any successor thereto, and to avoid such a result,
Termination Benefits will be reduced, if necessary, to an amount which
is one dollar ($1.00) less than three (3) times the Executive's "base
amount," as determined in accordance with said Section 280G of the
Internal Revenue Code of 1986. The Executive shall determine the
allocation of the required reduction among the Termination Benefits
provided in Section 3 of this Agreement.
(ii) The Executive shall have no right to receive compensation or
other benefits for any period after Termination for Cause.
(iii) If the Executive 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") (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 any vested rights of the parties shall
not be affected.
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(iv) 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 any vested
rights of the parties.
(v) 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 OTS, or his or
her designee, at the time that the Federal Deposit Insurance
Corporation or the Resolution Trust Corporation 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 OTS, or his or her designee, at the time that the Director of 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 OTS to be in an unsafe or unsound
condition. Such action shall not affect any vested rights of the
parties.
(vi) 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 Executive 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: (a) pay the
Executive any compensation which was withheld while its contract
obligations were suspended; and (b) reinstate any of its remaining
obligations, which were suspended and which are still due to the
Executive from the Bank even after the Bank makes the payment to the
Executive set forth in subparagraph (a) of this paragraph (c)(vi).
(vii) Any payments made to the Executive 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.
6. Administration. Full power and discretionary authority to construe,
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interpret and administer this Agreement shall be vested in the Boards of
Directors of the Bank and the Company. Decisions of the Boards of Directors of
the Bank and the Company shall be presumptively final, conclusive and binding on
all parties, but shall be subject to paragraph 5 of this Agreement.
7. Attorney Fees. In the event that any dispute arises between the
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Executive and the Bank or the Company as to the terms or interpretation of this
Agreement, whether instituted by formal legal proceedings or otherwise,
including any action that the Executive takes to enforce the terms of this
Agreement or to defend against any action taken by the Bank or the Company, the
Executive shall be reimbursed for all costs and expenses, including reasonable
attorneys' fees, arising from such dispute, proceedings or actions, provided
that the Executive shall obtain a final judgment or settlement substantially in
his favor in a court of competent jurisdiction or in binding arbitration under
the rules of the American Arbitration Board. Such reimbursement shall be paid
within ten (10) days of the Executive's furnishing to the Bank and/or the
Company
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written evidence, which may be in the form, among other things, of a check or
receipt, of any costs or expenses incurred by the Executive.
8. No Assignment. The Executive's right to receive payments or benefits
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under this Agreement shall not be assignable or transferable whether by pledge,
creation of a security interest or otherwise, other than a transfer by will or
by the laws of descent or distribution as to compensation due hereunder to the
Executive by the Bank or the Company prior to the Executive's death. In the
event of any attempted assignment or transfer contrary to this paragraph 8, the
Bank and/or the Company shall have no liability to pay any amount so attempted
to be assigned or transferred. This Agreement shall inure to the benefit of and
be enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees, if, and
only if, compensation is due hereunder to the Executive by the Bank or the
Company prior to the Executive's death.
9. Successors. This Agreement shall be binding upon and inure to the
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benefit of the Bank, the Company, its successor and assigns (including, without
limitation, any company into or with which the Bank may merge or consolidate).
10. Miscellaneous.
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(a) Applicable Law. This contract is entered into under, and shall be
governed for all purposes by, the laws of the State of Maryland, except to the
extent that federal law controls the matter, and, in that event, this Agreement
shall be governed by federal law applicable to any provisions of this Agreement.
(b) Severability of Provisions. If a court of competent jurisdiction
determines that any provision of this Agreement is invalid or unenforceable,
then the invalidity or enforceability of that provision shall not affect the
validity or enforceability of any other provision of this Agreement and all
other provisions shall remain in full force and effect.
(c) Withholding of Taxes. The Bank or the Company may withhold from any
benefits payable under this Agreement all federal, state, city or other taxes as
may be required pursuant to any law, governmental regulation or ruling.
(d) Entire Agreement. This Agreement contains the entire agreement and
understanding of the parties with respect to the subject matter hereof and shall
not be altered or amended except by a writing executed in the same manner as the
Agreement.
(e) Effect of Internal Revenue Code Section 409A. Notwithstanding
anything in this Agreement to the contrary, if the Bank or the Company in good
faith determines, as of the effective date of Executive's termination of
employment following a Change in Control, that an amount (or any portion of an
amount) payable to Executive hereunder, is required to be suspended or delayed
for six months in order to satisfy the requirements of Section 409A of the
Internal Revenue Code, then the Bank or the Company will so advise Executive,
and any such payment (or the minimum amount thereof) shall be suspended and
accrued for six months,
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whereupon such amount or portion thereof shall be paid to Executive in a lump
sum (together with interest thereon at the then-prevailing prime rate) on the
first day of the seventh month following the effective date of Executive's
termination of employment following a Change in Control.
(f) Source of Payments. All payments provided in this Agreement shall
be timely paid in cash or check from the general funds of the Bank. The Company
or its successor however, unconditionally guarantees payment and provision of
all amounts and benefits due hereunder to Executive and, if such amounts and
benefits due from the Bank are not timely paid or provided by the Bank, such
amounts and benefits shall be paid or provided by BCSB Bankcorp, Inc. or its
successor
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered as of the day and year specified in the first paragraph hereof.
ATTEST: BALTIMORE COUNTY SAVINGS BANK, F.S.B.
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxx
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Its Chairman of the Board
WITNESS: BCSB BANKCORP, INC.
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxx
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Its Chairman of the Board
WITNESS:
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
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