|
Exhibit 10.5
TWO-YEAR
CHANGE IN CONTROL AGREEMENT
(BANKLIBERTY)
This AGREEMENT
("Agreement") is hereby entered into as of
July 21, 2006,
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.
WHEREAS, the Bank recognizes 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 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.
NOW, THEREFORE, in consideration of the promises
and mutual covenants herein contained, it is hereby agreed as
follows:
(a) The term of this
Agreement shall be (i) the initial term, consisting of the period
commencing on the date of this Agreement (the "Effective Date") and
ending on the second anniversary of the Effective Date, plus (ii)
any and all extensions of the initial term made pursuant to this
Section 1.
(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.
(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 following an event
constituting "Good Reason."
For purposes of this Section 2, "Good Reason"
means, unless Executive has consented in writing thereto, the
occurrence following a Change in Control, of any of the
following:
(i) the assignment to Executive of any
duties materially inconsistent with Executive’s position,
including any material change in status, title, authority, duties
or responsibilities or any other action that results in a material
diminution in such status, title, authority, duties or
responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and
that is remedied by the Bank or Executive’s employer
reasonably promptly after receipt of notice thereof given by the
Executive;
| |
(ii)
|
a reduction by the Bank or Executive’s
employer of the Executive’s base salary in effect immediately
prior to the Change in Control;
|
| |
(iii)
|
the relocation of the Executive’s office to
a location more than fifty (50) miles from its location as of the
date of this Agreement;
|
| |
(iv)
|
the taking of any action by the Bank or any of
its affiliates or successors that would materially adversely affect
the Executive’s overall compensation and benefits package,
unless such changes to the compensation and benefits package are
made on a non-discriminatory basis to all employees; or
|
|
|
(v)
|
the failure of the Bank or the affiliate of the
Bank by which Executive is employed, or any affiliate that directly
or indirectly owns or controls any affiliate by which Executive is
employed, to obtain the assumption in writing of the Bank’s
obligation to perform this Agreement by any successor to all or
substantially all of the assets of the Bank or such affiliate
within thirty (30) days after a reorganization, merger,
consolidation, sale or other disposition of assets of the Bank or
such affiliate.
|
(b) For purposes of
this Agreement, a "Change in Control" shall be deemed to occur on
the earliest of:
|
|
(i)
|
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.
|
2
| |
(ii)
|
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.
|
| |
(iii)
|
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
|
| |
(iv)
|
Sale of Assets : The Company or the
Bank sells to a third party all or substantially all of its
assets.
|
(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.
3
(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:
|
|
(i)
|
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 parachu
|
|
