Exhibit 10.1
FORM OF
EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is made and
entered into as of this ___ day of _____________, 2008, by and
between Anchor Bancorp (the “Company”), and its wholly
owned subsidiary, Anchor Bank (the “Bank”), and
______________________ (the “Employee”).
WHEREAS,
the Employee is currently serving as the __________________________
of the Bank;
WHEREAS,
the Employee has made and will continue to make a major
contribution to the success of the Company and the Bank in the
position of __________________________;
WHEREAS,
the board of directors of the Company and the board of directors of
the Bank (collectively, the “Board of Directors”)
recognize that the possibility of a change in control of the Bank
or the Company may occur and that such possibility, and the
uncertainty and questions which may arise among management, may
result in the departure or distraction of key management to the
detriment of the Company, the Bank and their respective
stockholders;
WHEREAS,
the Board of Directors believes that it is in the best interests of
the Company and the Bank to enter into this Agreement with the
Employee in order to assure continuity of management of the Company
and its subsidiaries; and
WHEREAS,
the Board of Directors 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.
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 change
of control 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 Effective Date or who are members
of the board of directors of the Bank immediately following the
Effective 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 subsequently 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 or
the Bank’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 “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.
(c) The
term “Date of Termination” means the date upon which
the Employee experiences a Separation from the Company or the Bank
or both, as specified in a notice of termination pursuant to
Section 8 of this Agreement or the date a succession becomes
effective under Section 10.
(d) The
term “Effective Date” means the date of this
Agreement.
(e) The
term “Involuntary Termination” means the
Employee’s termination of employment (i) by either the
Company or the Bank or both without the Employee’s 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 Company’s administrative offices as of the Effective
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 or the Company; (5) a
material permanent increase in the required hours of work or the
workload of the Employee; or (6) the failure of the board of
directors of the Company (or a board of directors of a successor of
the Company) to elect him/her as ___________________________ of the
Company (or a successor of the Company) or any action by the board
of directors of the Company (or a board of directors of a successor
of the Company) removing him/her from such office, or the failure
of the board of directors of the Bank (or any successor of the
Bank) to elect him/her as ______________________________ of the
Bank (or any successor of the Bank) or any action by such board (or
a board of a successor of the Bank) removing
2
him/her from such office. The
term “Involuntary Termination” does not include
Termination for Cause, termination of employment due to death or
permanent disability pursuant to Section 7(f) of this Agreement,
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
(“FDIA”).
(f) The
term “Section 409A” shall mean Section 409A of the Code
and the regulations and guidance of general applicability issued
thereunder.
(g) The
term “Separation from Service” shall have the same
meaning as in Section 409A, taking into account all rules and
presumptions provided for in the final Section 409A
regulations.
(h) The
terms “Termination for Cause” and “Terminated For
Cause” mean Employee’s termination of employment with
either the Company or the Bank, as the case may be, 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 absence of good faith
and without a reasonable belief that his/her action or failure to
act was in the best interest of the Company or the Bank. The
Employee shall not be deemed to have been Terminated for Cause
unless and until there shall have been delivered to the Employee a
copy of a resolution, duly adopted by the affirmative vote of not
less than a majority of the entire membership of the Board of
Directors at a meeting of the Board duly called and held for such
purpose (after reasonable notice to the Employee and an opportunity
for the Employee, together with the Employee’s counsel, to be
heard before the Board), stating that in the good faith opinion of
the Board of Directors the Employee has engaged in conduct
described in the preceding sentence and specifying the particulars
thereof in detail.
2.
Term . The term of this Agreement shall be a period of three
years commencing on the Effective Date, subject to earlier
termination as provided herein. Beginning on the first anniversary
of the Effective Date, and on each anniversary thereafter, the term
of this Agreement shall be extended for a period of one year in
addition to the then-remaining term, provided that (i)
neither the Employee nor the Company has given notice to the other
in writing at least 90 days prior to such anniversary that the term
of this Agreement shall not be extended further; and (ii) prior to
such anniversary, the Board of Directors, or a committee of the
Board of Directors which has been delegated authority to act on
such matters by the Board of Directors (“Committee”),
explicitly reviews and approves the extension. Reference herein to
the term of this Agreement shall refer to both such initial term
and such extended terms.
3.
Employment . The Employee shall be employed as the
____________________________ of the Company and as the
_____________________________ of the Bank. As such, the Employee
shall render all services and possess the powers as are customarily
performed by persons situated in
3
similar executive capacities, and
shall have such other powers and duties as the Board of Directors
may prescribe from time to time. The Employee shall also render
services to any subsidiary or subsidiaries of the Company or the
Bank as requested by the Company or the Bank from time to time
consistent with his/her executive position. The Employee shall
devote his/her best efforts and reasonable time and attention to
the business and affairs of the Company and the Bank to the extent
necessary to discharge his/her responsibilities hereunder. The
Employee may (i) serve on charitable or civic boards or committees
and, in addition, on such corporate boards as are approved in a
resolution adopted by a majority of the Board of Directors or a
Committee, which approval shall not be withheld unreasonably, and
(ii) manage personal investments, so long as such activities do not
interfere materially with performance of his/her responsibilities
hereunder or give rise to violations of applicable securities
laws.
4.
Cash Compensation .
(a)
Salary . The Company and the Bank jointly agree to pay the
Employee during the term of this Agreement a base salary (the
“Salary”) the annualized amount of which in any year
shall be not less than the annualized aggregate amount of the
Employee’s base salary from the Company and any Consolidated
Subsidiaries in effect at the Effective Date; provided that
any amounts of salary actually paid to the Employee by any
Consolidated Subsidiaries shall reduce the amount to be paid by the
Company and the Bank to the Employee. The Salary shall be paid no
less frequently than monthly and shall be subject to customary tax
withholding. The amount of the Employee’s Salary shall be
increased (but shall not be decreased) from time to time in
accordance with the amounts of salary approved by the Board of
Directors or the Committee or the board of directors or the
appropriate committee of any of the Consolidated Subsidiaries after
the Effective Date. The amount of the Salary shall be reviewed by
the Board of Directors or the Committee at least annually during
the term of this Agreement.
(b)
Bonuses . The Employee shall be entitled to participate in
an equitable manner with all other executive officers of the
Company and the Bank in such performance-based and discretionary
bonuses, if any, as are authorized and declared by the Board of
Directors or the Committee for executive officers. Any such bonus
shall be paid no later than 2½ months after the end of the
calendar year in which the Employee obtains a nonforfeitable right
to the bonus.
(c)
Expenses . The Employee shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Employee
in performing services under this Agreement in accordance with the
policies and procedures applicable to the executive officers of the
Company and the Bank, provided that the Employee accounts
for such expenses as required under such policies and
procedures.
5.
Benefits .
(a)
Participation in Benefit Plans . The Employee shall be
entitled to participate, to the same extent as executive officers
of the Company and th
