Exhibit
10.2
AMENDED
AND RESTATED
BANKLIBERTY
TWO-YEAR
CHANGE IN CONTROL AGREEMENT
This
AGREEMENT originally entered into as of July
21, 2006 (“Agreement”), by and between
BANKLIBERTY (the “Bank”), a federally chartered
financial institution, with its principal offices at 16 West
Franklin Street, Liberty, Missouri 64068, MARK E.
HECKER (“Executive”) and LIBERTY
BANCORP, INC. (the “Company”), a
Missouri-chartered corporation and the holding company of the Bank,
as guarantor is amended and restated in its entirety as of December
17, 2008.
WHEREAS,
the
Bank continues to recognize the importance of Executive to the
Bank’s operations and wishes to protect his position with the
Bank in the event of a change in control of the Bank or the Company
for the period provided for in this Agreement; and
WHEREAS,
Executive
and the Board of Directors of the Bank desire to enter into an
amended and restated agreement setting forth the terms and
conditions of payments due to Executive in the event of a change in
control and the related rights and obligations of each of the
parties and to bring the Agreement into compliance with Section
409A of the Internal Revenue Code of 1986, as amended (the
“Code”), and the regulations and guidance issued with
respect to Section 409A of the Code.
NOW,
THEREFORE, in
consideration of the promises and mutual covenants herein
contained, it is hereby agreed as follows:
1.
Term of Agreement.
(a) The
term of this Agreement shall be (i) the initial term, consisting of
the period commencing on July 21, 2006 (the “Effective
Date”) and ending on July 21, 2008, plus (ii) any and all
extensions of the initial term made pursuant to Section 1(b) of
this Agreement.
(b)
Commencing on the first anniversary of the Effective Date and
continuing each anniversary date thereafter, the Board of Directors
of the Bank (the “Board of Directors”) may extend the
term of this Agreement for an additional one (1) year period beyond
the then effective expiration date, provided that Executive shall
not have given at least sixty (60) days’ written notice of
his desire that the term not be extended. As of the date
of this restatement the term of the Agreement had been extended to
December 17, 2010.
(c) Notwithstanding
anything in this Section to the contrary, this Agreement shall
terminate if Executive or the Bank terminates Executive’s
employment prior to a Change in Control.
(a) Upon
the occurrence of a Change in Control of the Company followed at
any time during the term of this Agreement by the termination of
Executive’s employment in accordance with the terms of this
Agreement, other than for Cause, as defined in Section 2(c) of this
Agreement, the provisions of Section 3 of this Agreement shall
apply. Upon the occurrence of a Change in Control,
Executive shall have the right to elect to voluntarily terminate
his employment at any time during the term of this Agreement for
“Good Reason.”
For
purposes of this Section 2, “Good Reason” shall mean
the occurrence of any of the following events without the
Executive’s consent:
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The
assignment to Executive of duties that constitute a material
diminution of his authority, duties, or responsibilities (including
reporting requirements);
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A
material diminution in Executive’s base salary;
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Relocation
of Executive to a location outside a radius of 50 miles of the
Company’s corporate office; or
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Any
other action or inaction by the Company that constitutes a material
breach of this Agreement;
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provided,
that within ninety (90) days after the initial existence of such
event, the Company shall be given notice and an opportunity, not
less than thirty (30) days, to effectuate a cure for such asserted
“Good Reason” by
Executive. Executive’s resignation hereunder for
Good Reason shall not occur later than one hundred fifty (150) days
following the initial date on which the event Executive claims
constitutes Good Reason occurred.
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(b) For
purposes of this Agreement, a “Change in Control” shall
be deemed to occur on the earliest of:
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Merger
: The
Company or the Bank merges into or consolidates with another
corporation, or merges another corporation into the Company or the
Bank, 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.
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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.
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Change
in Board Composition : During
any period of two consecutive years, individuals who constitute the
Bank’s or 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 or the Bank’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
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Sale
of Assets : The
Company or the Bank sells to a third party all or substantially all
of its assets.
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(c) Executive
shall not have the right to receive termination benefits pursuant
to Section 3 hereof upon termination for Cause. The term
“Cause” shall mean termination because of
Executive’s personal dishonesty, incompetence, willful
misconduct, any breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of
any law, rule, regulation (other than traffic violations or similar
offenses), final cease and desist order, or any material breach of
any provision of this Agreement. Executive shall not
have the right to receive compensation or other benefits for any
period after termination for Cause. During the period beginning on
the date of the Notice of Termination for Cause pursuant to Section
4 hereof through the Date of Termination, stock options granted to
Executive under any stock option plan shall not be exercisable nor
shall any unvested stock awards granted to Executive
under any stock benefit plan of the Bank, the Company or any
subsidiary or affiliate thereof, vest. At the Date of
Termination, such stock options and any such unvested stock awards
shall become null and void and shall not be exercisable by or
delivered to Executive at any time subsequent to such termination
for Cause.
(a) If
Executive’s employment is voluntarily (in accordance with
Section 2(a) of this Agreement) or involuntarily terminated
within two (2) years of a Change in Control, Executive shall
receive:
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a lump
sum cash payment equal to two (2) times the Executive’s
“base amount,” within the meaning of Section 280G(b)(3)
of the Internal Revenue Code of 1986, as amended (the
“Code”). Such payment shall be made not
later than five (5) days following Executive’s termination of
employment and shall be reduced, if necessary, to avoid an excess
parachute payment as noted in paragraph (b) under this
Section 3.
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Continued
benefit coverage under all Association health and welfare plans
which Executive participated in as of the date of the Change in
Control (collectively, the “Employee Benefit Plans”)
for a period of 24 months following Executive’s termination
of employment. Said coverage shall be provided under the
same terms and conditions in effect on the date of
Executive’s termination of employment. Solely for
purposes of benefits continuation under the Employee Benefit Plans,
Executive shall be deemed to be an active employee.
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(b) Notwithstanding
the preceding provisions of this Section 3, in no event shall the
aggregate payments or benefits to be made or afforded to Executive
under said paragraphs or otherwise (the “Termination
Benefits”) constitute an “excess parachute
payment” under Section 280G of the Code or any successor
thereto, and to avoid such a result, Termination Benefits will be
reduced, if necessary, to an amount (the “Non-Triggering
Amount”), the value of which is one dollar ($1.00) less than
an amount equal to three (3) times Executive’s “base
amount,” as determined in accordance with said Section
280G. The allocation of the reduction required hereby
among the Termination Benefits provided by this Section 3 shall be
determined by Executive.
4.
Notice of Termination.
(a) Any
purported termination by the Bank or by Executive shall be
communicated by Notice of Termination to the other pa
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