Exhibit 10.2
CHANGE OF CONTROL EXECUTIVE
SEVERANCE AGREEMENT
THIS CHANGE OF CONTROL EXECUTIVE
SEVERANCE AGREEMENT (“Agreement”) is entered into as of
the 19th day of January, 2004, by and between COMMERCIAL FEDERAL
CORPORATION, a Nebraska corporation (the
“Corporation”), and its wholly-owned subsidiary,
COMMERCIAL FEDERAL BANK, A FEDERAL SAVINGS BANK (the
“Bank”), referred to collectively as the
“Employer,” and <<NAME>> (the
“Executive”).
A. The Executive is a key member of
the management of the Employer. It is in the best interests of the
Corporation, its shareholders, and the Bank to provide an
inducement to the Executive to remain in the service of the
Employer in the event of any proposed or anticipated Change of
Control of the Employer as defined herein, as well as to facilitate
an orderly transition in the event of a Change of
Control.
B. The Employer wishes to provide
economic security for the Executive in the event of a Change of
Control.
C. The following provisions have
been approved by the Boards of Directors of the Corporation and the
Bank (the “Boards”), and the following Sections shall
apply in the event of a Change of Control:
1. Duration . Subject to
Sections 7(e) and 8, this Agreement will remain in force until such
time as the Executive terminates his or her employment or the
Employer, prior to a Change of Control, either terminates the
employment of the Executive or reduces Executive’s job title
below the level of <<TITLE>>.
2. Change of Control . A
Change of Control shall be deemed to have occurred upon the
occurrence of the first of any of the following events, referred to
herein as a “Change of Control Event”:
a. The acquisition 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”)) (a “Person”) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 49% or more of either (A) the then-outstanding
shares of common stock of the Corporation (the “Outstanding
Corporation Common Stock”) or (B) the combined voting power
of the then-outstanding voting securities of the Corporation
entitled to vote generally in the election of directors (the
“Outstanding Corporation Voting Securities”);
provided , however , that, for purposes of this
Section 2(a), the following acquisitions shall not constitute a
Change of Control Event: (i) any acquisition directly from the
Corporation, (ii) any acquisition by the Corporation, (iii) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Corporation or any of its affiliated
companies or (iv) any acquisition by any corporation pursuant to a
transaction that complies with Sections 2(c)(i), 2(c)(ii) and
2(c)(iii).
b. Individuals who, as of the date
hereof, constitute the Board of the Corporation (the
“Incumbent Board”) cease for any reason to constitute
at least a majority of the Board of the Corporation;
provided , however , that any individual becoming a
director subsequent to the date hereof whose election, or
nomination for election by the Corporation’s stockholders,
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 occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board of the
Corporation.
c. Consummation of a reorganization,
merger, consolidation or a sale or other disposition of all or
substantially all of the assets of the Corporation (each, a
“Business Combination”), in each case unless, following
such Business Combination, (i) all or substantially all of the
individuals and entities that were the beneficial owners of the
Outstanding Corporation Common Stock and the Outstanding
Corporation Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 50%
of 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 Business Combination
(including, without limitation, a corporation that, as a result of
such transaction, owns the Corporation or all or substantially all
of the Corporation’s assets either directly or through one or
more subsidiaries) in substantially the same proportions as their
ownership immediately prior to such Business Combination of the
Outstanding Corporation Common Stock and the Outstanding
Corporation Voting Securities, as the case may be, (ii) no Person
(excluding any corporation resulting from such Business Combination
or any employee benefit plan (or related trust) of the Corporation
or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 49% or more of,
respectively, the then-outstanding shares of common stock of the
corporation resulting from such Business Combination or the
combined voting power of the then-outstanding voting securities of
such corporation, except to the extent that such ownership existed
prior to the Business Combination, and (iii) at least a majority of
the members of the board of directors of the corporation resulting
from such Business Combination were members of the Incumbent Board
at the time of the execution of the initial agreement or of the
action of the Board providing for such Business
Combination.
d. Approval by the stockholders of
the Corporation of a complete liquidation or dissolution of the
Corporation.
e. The occurrence of any event that
would constitute a Change of Control Event were the term
“Bank” substituted for the term
“Corporation” in every instance where the term
“Corporation” appears in Sections 2(a-d) hereof, other
than an event after which the Corporation and its affiliates in the
aggregate continue to hold, directly or indirectly, at least a
majority of both the then-outstanding shares of common stock of the
Bank and the combined voting power of the then-outstanding voting
securities of the Bank entitled to vote generally in the election
of directors (unless such event is approval by the stockholders of
the Bank of a complete liquidation or dissolution of the Bank,
which shall be considered a Change of Control Event in all
cases).
3. Constructive Involuntary
Termination . A Constructive Involuntary Termination is deemed
to have occurred if, in anticipation of a Change of Control Event,
or during the three-year period after such an event has occurred,
any of the following occurs:
a. The assignment to the Executive
of any duties inconsistent in any respect with the
Executive’s position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities, or
any other action by the Employer that results in a diminution in
such position, authority, duties or responsibilities, excluding for
this purpose an isolated,
2
insubstantial and inadvertent action
that is not taken in bad faith and that is remedied by the Employer
promptly after receipt of notice thereof given by the
Executive.
b. The Executive’s
compensation level is reduced.
c. The level of the
Executive’s participation in incentive compensation is
reduced or eliminated.
d. The Executive’s benefit
coverage or perquisites are reduced or eliminated, except to the
extent such reduction or elimination applies to all other
employees.
e. The Executive’s office
location is changed to a location greater than fifty (50) miles
from the location of the Executive’s office at the time of
the Change of Control Event.
f. Any purported termination by the
Employer of the Executive’s employment other than as
expressly permitted by this Agreement; or
g. Any failure by the Employer to
comply with and satisfy Section 9 of this Agreement.
For pu
