SIXTH AMENDMENT TO EMPLOYMENT AGREEMENT
---------------------------------------
THIS AGREEMENT entered into this 20th day of May, 1998 by
and between Jefferson Savings and Loan Association (the
"Association"), Jefferson Savings Bancorp, Inc. (the
"Corporation"), and Xxxxx X. XxXxx (the "Employee").
WHEREAS, the Corporation, the Association and the Employee
have previously entered into an employment agreement, dated
November 9, 1993 (the "Employment Agreement"), which provides
for certain benefits to be paid to the Employee if he is
terminated in connection with a change in control of the
Corporation or the Association; and
WHEREAS, the parties desire to amend the provisions of the
Employment Agreement relating to the benefits paid to the
Employee in the event of such a change in control.
NOW, THEREFORE, it is agreed that, effective May 20, 1998,
the Employment Agreement will be amended as follows:
I.
Paragraph (a) of Section 11 of the Employment Agreement is
hereby deleted in its entirety and the following is substituted
in lieu thereof:
"11. Change in Control.
-----------------
(a) Notwithstanding any provision herein to the
contrary, if the Employee's employment under this Agreement
is terminated by the Corporation or the Association,
without the Employee's prior written consent and for a
reason other than Just Cause, in connection with or within
twelve (12) months after any change in control of the
Association or the Corporation, the Employee shall be paid
an amount equal to 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. Said sum shall be paid
in one lump sum within ten (10) days of such termination.
The term "change in control" shall mean:
(i) the acquisition, other than from the Association
or the Corporation, by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange
Act) of 25% or more of either the then outstanding
shares of Common Stock of the Association or the
Corporation or the combined voting power of the then
outstanding voting securities of the Association or
the Corporation entitled to vote generally in the
election of directors, but excluding, for this
purpose, any such acquisition by the Association or
the Corporation or any subsidiaries in which the
Association or the Corporation own, directly or
indirectly, a proprietary interest of more than 50%
(the "Subsidiaries"), or any employee benefit plan (or
related trust) of the Association or the Corporation
or their Subsidiaries;
(ii) individuals who, as of the date hereof,
constitute the Board of Directors (the "Incumbent
Board") of the Association or the Corporation cease
for any reason to constitute at least a majority of
the Board of Directors, provided that any individual
becoming a director subsequent to the date hereof
whose election, or nomination for election by the
Association's or the Corporation's shareholders, was
approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be
considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose,
any such individual whose initial assumption of office
is in connection with an actual or threatened election
contest relating to the election of the directors of
the Association or the Corporation (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act); or
(iii) approval by the stockholders of the Association
or the Corporation of a reorganization, merger or
consolidation of the Association or the Corporation,
in each case, with respect to which all or
substantially all of the individuals and entities who
were the respective beneficial owners of the Common
Stock and voting securities of the Association or the
Corporation immediately prior to such reorganization,
merger or consolidation do not, following such
reorganization, merger or consolidation, beneficially
own, directly or indirectly, more than 65% of,
respectively, the then outstanding shares of Common
Stock and the combined voting power of the then
outstanding voting securities entitled to vote
generally in the election of directors, as the case
may be, of the corporation resulting from such
reorganization, merger or consolidation, or a complete
liquidation or dissolution of the Association or the
Corporation or of the sale or other disposition of all
or substantially all of the assets of the Association
or the Corporation.
(iv) the acquisition and exercise of a controlling
influence over the management or policies of the
Association or the Corporation by any person or by
persons acting as a group within the meaning of
Section 13(d) of the Securities Exchange Act of 1934."
II.
The following new paragraph (d) is hereby added to Section
11 of the Employment Agreement:
"(d) No later than the earlier of (i) sixty (60) days
following delivery of the notice of employment termination
by the Employee or the Association or the Corporation
pursuant to the terms of this Agreement, or (ii) ten (10)
days prior to the due date of the Employee's federal income
tax return (without extension), the Association and the
Corporation at their expense shall obtain and deliver to
the Employee an opinion from their legal counsel (which
2
opinion shall be supported by an opinion of the
Association's or the Corporation's accountant and shall be
acceptable to the Employee and his attorneys and
accountants) setting out whether, and to what extent,
amounts or benefits payable to the Employee, pursuant to
the Agreement or otherwise, are subject to any excise tax
or similar tax pursuant to Sections 280G and 4999 of the
Code, or any successor or other comparable federal, state
or local tax laws. If any amounts or benefits payable to
the Employee, pursuant to this Agreement or otherwise, are
determined as provided above to be subject to any such
excise or similar tax, the Association and the Corporation
shall immediately pay to the Employee such additional sum
as is necessary (after taking into account all federal,
state and local income taxes payable by the Employee as a
result of the receipt of such additional sum) (the "gross
up payment") to place the Employee in the same after-tax
position he would have been in had no such excise or
similar purpose tax been paid or incurred. In the
event of a subsequent controversy (including audit,
administrative appeal or litigation) with the Internal
Revenue Service (the "IRS"), or any state or local
authority with respect to any excise or similar tax
pursuant to Sections 280G and 4999 of the Code, or any
successor or other comparable federal, state or local tax
laws, the Association and the Corporation shall promptly
reimburse the Employee for any legal and accounting fees
incurred by the Employee with respect to such controversy,
and shall promptly pay to the Employee an additional
gross-up payment as described above if additional excise or
similar taxes pursuant to Section 280G and 4999 of the
Code, or any successor or other comparable federal, state
or local tax laws are subsequently determined to be due and
payable, which additional gross-up payment shall include
reimbursement for any interest expense and penalties
payable to any taxing authority which is attributable to
any increased excise or similar taxes pursuant to Sections
280G and 4999 of the Code and related legal or accounting
fees. If the Employee is subject to an audit by the IRS or
any state or local authority, the Employee shall give
prompt notice thereof to the Corporation and the
Association. In such an event, the Corporation or
the Association shall provide legal representation at
audit, administrative appeal and in litigation on the
Employee's behalf with respect to any such action with an
attorney reasonably acceptable to the Employee; provided,
however, the Employee's counsel shall be kept advised of
all proceedings and shall be permitted to participate
therein and the Employee shall be entitled to reimbursement
as provided above with respect to the fees and expenses of
his counsel. Notwithstanding the foregoing, no settlement
shall be agreed to or otherwise permitted with respect to
any such audit without the prior written consent of the
Employee."
3
IN WITNESS WHEREOF, the parties have executed this
Agreement on the day and year first herein above written:
ATTEST: JEFFERSON SAVINGS AND LOAN
ASSOCIATION
/s/ By:/s/ Xxxxx X. Xxxx
---------------------- -----------------------
Secretary Director
ATTEST: JEFFERSON SAVINGS BANCORP, INC.
/s/ By:/s/ Xxxxx X. Xxxx
---------------------- -----------------------
Secretary Director
WITNESS:
/s/ By: /s/ Xxxxx X. XxXxx
---------------------- -----------------------
Secretary Employee
4
