Exhibit 10.23
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 William A. Fitzgerald (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:
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1.
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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
Chairman/Chief Executive Officer.
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2.
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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”:
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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,
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 purposes of this Section 3,
any good faith determination of Constructive Involuntary
Termination made by the Executive shall be conclusive. The
Executive’s mental or physical incapacity following the
occurrence of an event described above in clauses (a) through
(g) shall not affect the Executive’s ability to
terminate employment for Constructive Involuntary
Termination.
Anything in this Agreement to the
contrary notwithstanding, a termination by the Executive for any
reason during the 30-day period immediately following the first
anniversary of the Change of Control Event (the “Window
Period”) shall be deemed to be a Constructive Involuntary
Termination for all purposes of this Agreement.
4. Termination for Cause,
Executive’s Breach . The benefits provided herein shall
not be due in the event the Executive’s employment is
terminated for Cause or if the Executive breaches any obligation in
Section 8. The term “Cause” shall mean
(a) the willful and continued failure of the Executive to
perform substantially the Executive’s duties with the
Employer, after a written demand for substantial performance is
delivered to the Executive by either of the Boards or by the Chief
Executive Officer of the Corporation or the Bank that specifically
identifies the manner in which such Board or such Chief Executive
Officer believes that the Executive has not substantially performed
the Executive’s duties, and (b) the willful engaging by
the Executive in illegal conduct or gross misconduct that is
materially and demonstrably injurious to the Employer. For purposes
of this Section 4, no act, or failure to act, on the part of
the Executive shall be considered “willful” unless it
is done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive’s action or
omission was in the best interests of the Employer. Any act, or
failure to act, based upon authority given pursuant to a resolution
duly adopted by either of the Boards or upon the instructions of
the Chief Executive Officer of the Corporation or the Bank, or a
senior officer of the Corporation or the Bank or based upon the
advice of counsel for the Employer shall be conclusively presumed
to be done, or omitted to be done, by the Executive in good faith
and in the best interests of the Employer. The cessation of
employment of the Executive shall not be deemed to be for Cause
unless and until there shall have been delivered to the Executive a
copy of a resolution duly adopted by the affirmative vote of not
less than three-quarters of the entire membership of either Board
at a meeting of such Board called and held for such purpose (after
reasonable notice is provided to the Executive and the Executive is
given an opportunity, together with counsel for the Executive, to
be heard before the Board), finding that, in the good faith opinion
of such Board, the Executive is guilty of the conduct
described in this Section 4 constituting
basis for termination for Cause, and specifying the particulars
thereof in detail.
5. Voluntary Termination .
The benefits provided herein shall not be due in the event of a
voluntary termination. A voluntary termination will have occurred
if the Executive resigns from the successor corporation after a
Change of Control under conditions other than as constitute a
Constructive Involuntary Termination.
6. Regulatory Provisions Applicable
Only to the Bank.
a. If the Executive is suspended
and/or temporarily prohibited from participating in the conduct of
the Bank’s affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act
(12 U.S.C. § 1818(e)(3) and (g)(1)), the Bank’s
obligations under this Agreement shall be suspended as of the date
of service unless stayed by appropr
