Exhibit 10.2
FORM OF
CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS
CHANGE IN CONTROL SEVERANCE AGREEMENT (the “Agreement”)
is made and entered into as of this ____ day of ___________, 2008,
(the “Commencement Date”), by and between ANCHOR BANK
(which, together with any successor thereto which executes and
delivers the assumption agreement provided for in Section 5(a)
hereof or which otherwise becomes bound by all of the terms and
provisions of this Agreement by operation of law, is hereinafter
referred to as the “Bank”), and _______________ (the
“Employee”).
WHEREAS,
the Employee is currently serving as
_______________________________; and
WHEREAS,
the board of directors of the Bank (the “Board”)
recognizes that the possibility of a change in control of the Bank
or of its holding company, Anchor Bancorp (the
“Company”), may exist and that such possibility, and
the uncertainty and questions which it may raise among management,
may result in the departure or distraction of key management to the
detriment of the Bank, the Company and its stockholders;
and
WHEREAS,
the Board believes it is in the best interests of the Bank to enter
into this Agreement with the Employee in order to assure continuity
of management of the Bank and to reinforce and encourage the
continued attention and dedication of the Employee to the
Employee’s assigned duties without distraction in the face of
potentially disruptive circumstances arising from the possibility
of a change in control of the Company and/or the Bank, although no
such change is now contemplated; and
WHEREAS,
the Board has approved and authorized the execution of this
Agreement with the Employee;
NOW,
THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein, it is AGREED as
follows:
1.
Certain Definitions .
(a) The
term “Change in Control” means (1) an offeror other
than the Company purchases shares of stock of the Company or the
Bank pursuant to a tender or exchange offer for such shares; (2) an
event of a nature that results in the acquisition of control of the
Company or the Bank within the meaning of the Bank Holding Company
Act of 1956, as amended, under 12 U.S.C. Section 1841 (or any
successor statute or regulation) or requires the filing of a notice
with the Federal Deposit Insurance Corporation (“FDIC”)
under 12 U.S.C. Section 1817(j) (or any successor statute or
regulation); (3) any person (as the term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934 (“Exchange
Act”)) that is or becomes the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) directly or indirectly of
securities of the Company or the Bank representing 25% or more of
the combined voting power of the Company’s or the
Bank’s outstanding
securities; (4) individuals who
are members of the board of directors of the Company immediately
following the Commencement Date or who are members of the Board
immediately following the Commencement Date (in each case, the
“Incumbent Board”) cease for any reason to constitute
at least a majority thereof, provided that any person
becoming a director subsequent to the Commencement 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 the Company’s stockholders was approved by the
nominating committee serving under an Incumbent Board, shall be
considered a member of the Incumbent Board; or (5) consummation of
a plan of reorganization, merger, acquisition, consolidation, sale
of all or substantially all of the assets of the Company or a
similar transaction in which the Company is not the resulting
entity, provided that the term “Change in
Control” shall not include an acquisition of securities by an
employee benefit plan of the Bank or the Company.
(b) The
term “Commencement Date” means the date of this
Agreement.
(c) The
term “Consolidated Subsidiaries” means any subsidiary
or subsidiaries of the Company (or its successors) that are part of
the affiliated group (as defined in Section 1504 of the Internal
Revenue Code of 1986, as amended (the “Code”), without
regard to subsection (b) thereof) that includes the Bank, including
but not limited to the Company.
(d) The
term “Date of Termination” means the date upon which
the Employee ceases to serve as an employee of the Bank.
(e) The
term “Involuntary Termination” means the termination of
the employment of Employee (i) by the Bank, without his/her express
written consent; or (ii) by the Employee by reason of a material
diminution of or interference with his/her duties, responsibilities
or benefits, including (without limitation) any of the following
actions unless consented to in writing by the Employee: (1) a
requirement that the Employee be based at any place other than
Lacey, Washington, or within a radius of 35 miles from the location
of the Bank’s administrative offices as of the Commencement
Date, except for reasonable travel on Company or Bank business; (2)
a material demotion of the Employee; (3) a material reduction in
the number or seniority of personnel reporting to the Employee or a
material reduction in the frequency with which, or in the nature of
the matters with respect to which such personnel are to report to
the Employee, other than as part of a Bank- or Company-wide
reduction in staff; (4) a reduction in the Employee’s salary
or a material adverse change in the Employee’s perquisites,
benefits, contingent benefits or vacation, other than as part of an
overall program applied uniformly and with equitable effect to all
members of the senior management of the Bank; (5) a material
permanent increase in the required hours of work or the workload of
the Employee; or (6) any purported termination of the
Employee’s employment, except for Termination for Cause (and,
if applicable, the requirements of Section 1(g) hereof), which
purported termination shall not be effective for purposes of this
Agreement. The term “Involuntary Termination” does not
include Termination for Cause, retirement or suspension or
temporary or permanent prohibition from participation in the
conduct of the Bank’s affairs under Section 8 of the Federal
Deposit Insurance Act.
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(f) The
term “Section 409A” means Section 409A of the Code and
the regulations and guidance of general applicability issued
thereunder.
(g) The
terms “Termination for Cause” and “Terminated for
Cause” mean termination of the employment of the Employee
because of the Employee’s personal dishonesty, willful
misconduct, breach of a fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of
any law, rule, or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order, or (except as
provided below) material breach of any provision of this Agreement.
No act or failure to act by the Employee shall be considered
willful unless the Employee acted or failed to act with an
abs
