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Exhibit
10.5
CHANGE
IN CONTROL AGREEMENT
This
Change in Control Agreement (this “Agreement”) is made
effective as of _______________ (the “Effective Date”),
by and between Beacon Federal, a federally chartered savings
association with its principal office in East Syracuse, New York
(the “Bank”) and ___________________________
(“Executive”).
WHEREAS , Executive currently serves in the position of
_______________ of the Bank, a position of substantial
responsibility; and
WHEREAS , the Bank wishes to provide economic assurances to
Executive in certain circumstances, as specified herein;
NOW, THEREFORE , in consideration of the mutual covenants
herein contained, and upon the other terms and conditions
hereinafter provided, the parties hereto agree as
follows:
1. TERM
OF AGREEMENT
This
Agreement shall commence as of the Effective Date and shall
continue thereafter for a period of one (1) year. Commencing
on the first anniversary date of this Agreement (the
“Anniversary Date”), and continuing on each Anniversary
Date thereafter, the term of this Agreement shall renew for an
additional year such that the remaining term of this Agreement is
always one (1) year, unless written notice of non-renewal (a
“Non-Renewal Notice”) is provided to Executive at least
thirty (30) days and not more than sixty (60) days prior to any
such Anniversary Date, in which case the term of this Agreement
shall become fixed and shall end one (1) year following such
Anniversary Date.
2. PAYMENTS
TO EXECUTIVE UPON CHANGE IN CONTROL
This
Agreement provides for certain payments and benefits to Executive
only in the event of a Change in Control (as herein defined)
followed by the termination of Executive’s employment with
the Bank, as set forth in this Agreement.
(a) Upon
the occurrence of a Change in Control followed by Executive’s
voluntary termination of employment in accordance with this Section
2(a), or involuntary termination of Executive’s employment,
other than for Cause (as herein defined), the provisions of Section
3 shall apply. Upon the occurrence of a Change in Control,
Executive shall have the right to elect to voluntarily terminate
his employment with the Bank at any time during the term of this
Agreement following a demotion, loss of title, office or
significant authority (in each case, other than as a result of the
fact that the Bank is merged into another entity in connection with
the Change in Control and will not operate as a stand-alone,
independent entity), a reduction in his annual compensation or
benefits, or relocation of his principal place of employment by
more than 50 miles from its location immediately prior to the
Change in Control.
(b) The
term “Change in Control” shall mean any of the
following events, but shall not include a conversion of the Bank
from mutual to stock form:
(i) a
change in control of the Bank or any holding company of the Bank of
a nature that would be required to be reported in response to Item
5.01(a) of the current report on Form 8-K, as in effect on the date
hereof, pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”);
or
(ii) a
change in control of the Bank or any holding company of the Bank
within the meaning of the Home Owners’ Loan Act, as amended,
and applicable rules and regulations promulgated thereunder, as in
effect at the time of the Change in Control; or
(iii) any
of the following events, upon which a Change in Control shall be
deemed to have occurred:
(A) any
“person” (as the term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Bank or the
Bank’s holding company representing 25% or more of the
combined voting power of such outstanding securities, except for
any securities purchased by an employee stock ownership plan or
trust established by the Bank; or
(B) individuals
who constitute the Board on the Effective Date (the
“Incumbent Board”) cease for any reason to constitute a
majority thereof, provided that any person becoming a director
subsequent to the Effective Date whose election was approved by a
vote of at least three-quarters of the directors comprising the
Incumbent Board, or whose nomination for election by stockholders
of the Bank or the Bank’s holding company was approved by the
same Nominating Committee serving under an Incumbent Board, shall
be, for purposes of this subsection (B), considered as though they
were members of the Incumbent Board; or
(C) a
sale of all or substantially all the assets of the Bank or the
Bank’s holding company, or a plan of reorganization, merger,
consolidation, or similar transaction occurs in which the security
holders of the Bank or the Bank’s holding company immediately
prior to the consummation of the transaction do not own at least
50.1% of the securities of the surviving entity to be outstanding
upon consummation of the transaction; or
(D) a
proxy statement is issued soliciting proxies from stockholders of
the Bank or the Bank’s holding company by someone other than
the current management of the Bank or the Bank’s holding
company, seeking stockholder approval of a plan of reorganization,
merger or consolidation of the Bank or the Bank’s holding
company, or similar transaction with one or more corporations as a
result of which the outstanding shares of the class of securities
then subject to the plan are to be exchanged for or converted into
cash or property or securities not issued by the Bank or the
Bank’s holding company; or
(E) a
tender offer is made for 25% or more of the voting securities of
the Bank or the Bank’s holding company and stockholders
owning beneficially or of record 25% or more of the outstanding
securities of the Bank or the Bank’s holding company have
tendered or offered to sell their shares pursuant to such tender
offer and such tendered shares have been accepted by the tender
offeror.
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(c) Even
if a Change in Control shall occur, Executive shall not have the
right to receive termination benefits pursuant to Section 3 upon
termination of employment for “Cause.”
Termination for “Cause” shall mean termination because
of Executive’s personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit,
material breach of the Bank’s Code of Ethics, material
violation of the Sarbanes-Oxley requirements for officers of public
companies, if applicable, that in the reasonable opinion of the
Chief Executive Officer will likely cause substantial financial
harm or substantial injury to the reputation of the Bank of any
holding company of the Bank, willfully engaging in actions that in
the reasonable opinion of the Chief Executive Officer will likely
cause substantial financial harm or substantial injury to the
business reputation of the Bank, intentional failure to perform
stated duties, willful violation of any law, rule or regulation
(other than routine traffic violations or similar offenses) or
final cease-and-desist order, or material breach of any provision
of this Agreement .
3. TERMINATION
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