Exhibit 10.2
WALDEN FEDERAL SAVINGS AND LOAN
ASSOCIATION
AMENDED AND
RESTATED
CHANGE IN CONTROL
AGREEMENT
This AMENDED AND RESTATED AGREEMENT
(“Agreement”) is hereby entered into as of June 28,
2007, by and between WALDEN FEDERAL SAVINGS AND
LOAN ASSOCIATION (the “Bank”), STEPHEN W.
DEDERICK (“Executive”), and HOMETOWN BANCORP,
INC. (the “Company”), the holding company of the
Bank, as guarantor.
WHEREAS, the Company, the Bank and the Executive entered
into a Change in Control Agreement effective June 28, 2007;
and
WHEREAS , Section 409A of the Internal Revenue Code (the
“Code”), effective January 1, 2005, requires deferred
compensation arrangements, including those set forth in change in
control agreements, to comply with its provisions and restrictions
and limitations on payments of deferred compensation;
and
WHEREAS , the Final Treasury Regulations issued under
Code Section 409A in April of 2007 necessitate changes to the
original agreement; and
WHEREAS , the parties hereto desire to set forth the
terms of the revised Agreement.
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 date that is three
(3) years after the Effective Date, plus (ii) any and all
extensions of the initial term made pursuant to this Section
1. Notwithstanding anything in this Section 1 to
the contrary, the term of the Agreement shall be fixed at one year
as of the effective date of a Change in Control.
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
Executive’s desire that the term not be extended.
c. Notwithstanding
anything in this Section 1 to the contrary, this Agreement
shall terminate (i) if Executive or the Bank terminates
Executive’s employment prior to a Change in Control and
(ii) on the first anniversary of the effective date of a
Change in Control.
a. Upon
the occurrence of a Change in Control (as defined in Section 2c.)
followed at any time during the remaining term of the Agreement by
the Executive’s “Separation from Service,” as
defined in Code Section 409A and the Treasury Regulations
thereunder, in accordance with the terms of the Agreement, other
than for Cause (as defined in Section 2d.), the provisions of
Section 3 of the Agreement shall apply.
b. Upon
the occurrence of a Change in Control, Executive shall have the
right to elect to voluntarily terminate his employment following
the occurrence of an event constituting “Good
Reason.” “Good Reason” means, unless
Executive has consented in writing thereto, the occurrence
following a Change in Control of any of the following:
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A material
reduction in Executive’s responsibilities or authority in
connection with his employment with the Company or the
Bank;
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Assignment to
Executive of duties of a non-executive nature or duties for which
he is not reasonably equipped by his skills and
experience;
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A reduction in
salary or benefits contrary to the terms of this Agreement, or,
following a Change in Control as defined in Section 2c. of this
Agreement, any reduction in salary or material reduction in
benefits below the amounts to which Executive was entitled prior to
the Change in Control;
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Termination of
incentive and benefit plans (other than the Bank’s
tax-qualified plans), programs or arrangements, or reduction of
Executive’s participation to such an extent as to materially
reduce their aggregate value below their aggregate value as of the
Effective Date;
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A relocation of
Executive’s principal business office by more than
thirty-five (35) miles from its current location; or
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Liquidation or
dissolution of the Company or the Bank.
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Notwithstanding
the foregoing, if the Company or the Bank reduces or eliminates the
Executive’s benefits under one or more plans as part of a
good faith, overall reduction or elimination of such benefits or
plans, in a manner that does not discriminate against Executive
(except as such discrimination may be necessary to comply with
law), the Company’s or the Bank’s action shall not
constitute Good Reason for termination or a material breach of this
Agreement, provided that benefits of the same type or to the same
general extent are not subsequently made available to other
officers of the Company and the Bank, or any company that controls
either of them, under a plan or program in which Executive is not
entitled to participate. Furthermore, the Executive must
give written notice to the Bank within 90 days after the initial
occurrence of an event giving rise to “Good Reason” (as
defined above) and the Bank shall have 30 days to cure such
condition. If the condition is not cured during such
period, the Executive must terminate employment no later than two
years following the Good Reason condition.
c.
For purposes of this Agreement, a
“Change in Control” shall be deemed to occur on the
earliest of any of the following events:
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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 or the Bank
immediately before the merger or consolidation.
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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
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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 (b) 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.
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Change in
Board Composition : During any period of two
consecutive years, individuals who constitute the Company’s
or the Bank’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
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Sale of
Assets : The
Company or the Bank sells to a third party all or substantially all
of its assets.
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Notwithstanding
anything in this Agreement to the contrary, in no event shall the
reorganization of the Bank from the mutual holding company form of
organization to the full stock holding company form of organization
(including the elimination of the mutual holding company)
constitute a “Change in Control” for purposes of this
Agreement.
d. Executive
shall not have the right to receive termination benefits pursuant
to Section 3 of this Agreement upon termination for
Cause. Termination for Cause shall mean termination of
Executive’s employment 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. Notwithstanding the
foregoing, Executive shall not be deemed to have been terminated
for Cause unless and until there shall have been delivered to him a
copy of a resolution duly adopted by the affirmative vote of a
majority of the entire membership of the Board of Directors at a
meeting of the Board of Directors called and held for the purpose
of finding (after reasonable notice to Executive and an opportunity
for him, together with counsel, to be heard before the Board of
Directors), that Executive engaged in conduct justifying
termination for Cause and specifying the particulars of such
conduct in detail. 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 of this Agreement through the Date of Termination, sto
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