Exhibit 10.6
TierOne Bank
Two-year Change in Control Agreement
THIS CHANGE IN CONTROL AGREEMENT is dated this ____ day of _____ 2002,
among TierOne Bank, a federally-chartered savings bank (the "Bank"), TierOne
Corporation, a Wisconsin corporation and the holding company of the Bank (the
"Company"), and ________________ (the "Executive"). The Company and the Bank are
collectively referred to as the "Employers".
WITNESSETH
WHEREAS, the Executive is presently an officer of the Bank;
WHEREAS, the Employers desire to be ensured of the Executive's continued
active participation in the business of the Employers; and
WHEREAS, in order to induce the Executive to remain in the employ of the
Employers and in consideration of the Executive's agreeing to remain in the
employ of the Employers, the parties desire to specify the severance benefits
which shall be due the Executive in the event that his employment with the
Employers is terminated under specified circumstances;
NOW THEREFORE, in consideration of the mutual agreements herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. Definitions. The following words and terms shall have the meanings set
forth below for the purposes of this Agreement:
(a) Annual Compensation. The Executive's "Annual Compensation" for
purposes of this Agreement shall be deemed to mean the highest level of
aggregate base salary and cash incentive compensation paid to the Executive by
the Employers or any subsidiary thereof during the calendar year in which the
Date of Termination occurs (determined on an annualized basis) or either of the
two calendar years immediately preceding the calendar year in which the Date of
Termination occurs.
(b) Cause. Termination of the Executive's employment for "Cause" shall
mean termination because of personal dishonesty, incompetence, willful
misconduct, breach of 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. For purposes of this paragraph, no act or failure to act
on the Executive's part shall be considered "willful" unless done, or omitted to
be done, by the Executive not in good faith and without reasonable belief that
the Executive's action or omission was in the best interests of the Employers.
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(c) Change in Control. "Change in Control shall mean the occurrence of any
of the following events:
(i) approval by the shareholders of the Company of a transaction
that would result and does result in the reorganization, merger or
consolidation of the Company, with one or more other persons, other than a
transaction following which:
(A) at least 51% of the equity ownership interests of the entity
resulting from such transaction are beneficially owned (within the meaning
of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as
amended ("Exchange Act")) in substantially the same relative proportions by
persons who, immediately prior to such transaction, beneficially owned
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) at
least 51% of the outstanding equity ownership interests in the Company; and
(B) at least 51% of the securities entitled to vote generally in
the election of directors of the entity resulting from such transaction are
beneficially owned (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) in substantially the same relative proportions by persons
who, immediately prior to such transaction, beneficially owned (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) at least 51% of
the securities entitled to vote generally in the election of directors of
the Company;
(ii) the acquisition of all or substantially all of the assets of the
Company or beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of the outstanding
securities of the Company entitled to vote generally in the election of
directors by any person or by any persons acting in concert, or approval by
the shareholders of the Company of any transaction which would result in
such an acquisition;
(iii) a complete liquidation or dissolution of the Company or the
Bank, or approval by the shareholders of the Company of a plan for such
liquidation or dissolution;
(iv) the occurrence of any event if, immediately following such
event, members of the Company Board who belong to any of the following
groups do not aggregate at least a majority of the Company Board:
(A) individuals who were members of the Company Board on the
Effective Date of this Agreement; or
(B) individuals who first became members of the Company Board
after the Effective Date of this Agreement either:
(1) upon election to serve as a member of the Company
Board by the affirmative vote of three-quarters of the members of such
Board, or of a nominating committee thereof, in office at the time of such
first election; or
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(2) upon election by the shareholders of the Company Board
to serve as a member of the Company Board, but only if nominated for
election by the affirmative vote of three-quarters of the members of such
Board, or of a nominating committee thereof, in office at the time of such
first nomination;
provided that such individual's election or nomination did not result from
an actual or threatened election contest or other actual or threatened
solicitation of proxies or consents other than by or on behalf of the
Company Board; or
(v) any event which would be described in Section 1(c)(i), (ii),
(iii) or (iv) if the term "Bank" were substituted for the term "Company"
therein and the term "Bank Board" were substituted for the term "Company
Board" therein.
In no event, however, shall a Change in Control be deemed to have occurred as a
result of any acquisition of securities or assets of the Company, the Bank or a
subsidiary of either of them, by the Company, the Bank, any subsidiary of either
of them, or by any employee benefit plan maintained by any of them. For purposes
of this Section 1(c), the term "person" shall include the meaning assigned to it
under Sections 13(d)(3) or 14(d)(2) of the Exchange Act.
(d) Code. "Code" shall mean the Internal Revenue Code of 1986, as amended.
(e) Date of Termination. "Date of Termination" shall mean (i) if the
Executive's employment is terminated for Cause, the date on which the Notice of
Termination is given, and (ii) if the Executive's employment is terminated for
any other reason, the date specified in the Notice of Termination.
(f) Disability. Termination by the Employers of the Executive's employment
based on "Disability" shall mean termination because of any physical or mental
impairment which qualifies the Executive for disability benefits under the
applicable long-term disability plan maintained by the Employers or any
subsidiary or, if no such plan applies, which would qualify the Executive for
disability benefits under the Federal Social Security System.
(g) Good Reason. Termination by the Executive of the Executive's
employment for "Good Reason" shall mean termination by the Executive following a
Change in Control based on:
(i) Without the Executive's express written consent, the assignment
by the Employers to the Executive of any duties which are materially
inconsistent with the Executive's positions, duties, responsibilities and
status with the Employers immediately prior to a Change in Control, or a
material change in the Executive's reporting responsibilities, titles or
offices as an employee and as in effect immediately prior to such a Change
in Control, or any removal of the Executive from or any failure to re-elect
the Executive to any of such responsibilities, titles or offices, except in
connection with the
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termination of the Executive's employment for Cause, Disability or
Retirement or as a result of the Executive's death or by the Executive
other than for Good Reason;
(ii) Without the Executive's express written consent, a reduction by
either of the Employers in the Executive's base salary as in effect
immediately prior to the date of the Change in Control or as the same may
be increased from time to time thereafter or a reduction in the package of
fringe benefits provided to the Executive;
(iii) A change in the Executive's principal place of employment by a
distance in excess of 25 miles from its location immediately prior to the
Change in Control;
(iv) Any purported termination of the Executive's employment for
Disability or Retirement which is not effected pursuant to a Notice of
Termination satisfying the requirements of paragraph (i) below; or
(v) The failure by the Employers to obtain the assumption of and
agreement to perform this Agreement by any successor as contemplated in
Section 6 hereof.
(h) IRS. IRS shall mean the Internal Revenue Service.
(i) Notice of Termination. Any purported termination of the Executive's
employment by the Employers for any reason, including without limitation for
Cause, Disability or Retirement, or by the Executive for any reason, including
without limitation for Good Reason, shall be communicated by written "Notice of
Termination" to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated,
(iii) specifies a Date of Termination, which shall be not less than thirty (30)
nor more than ninety (90) days after such Notice of Termination is given, except
in the case of the Employers' termination of the Executive's employment for
Cause, which shall be effective immediately; and (iv) is given in the manner
specified in Section 11 hereof.
(j) Retirement. "Retirement" shall mean voluntary termination by the
Executive in accordance with the Employers' retirement policies, including early
retirement, generally applicable to their salaried employees.
2. Term of Agreement. The term of this Agreement shall be for two years,
commencing on the date of this Agreement (the "Effective Date"). Commencing on
the first anniversary of the Effective Date, the term of this Agreement shall
extend for an additional year on each annual anniversary of the Effective Date
of this Agreement until such time as the Boards of Directors of the Employers or
the Executive give notice in accordance with the terms of Section 11 hereof of
their or his election, respectively, not to extend the term of this Agreement.
Such written notice of the election not to extend must be given not less than
thirty (30) days prior to any such
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anniversary date. If any party gives timely notice that the term will not be
extended as of any annual anniversary date, then this Agreement shall terminate
at the conclusion of its remaining term. The Boards of Directors of the
Employers will review this Agreement and the Executive's performance annually
for purposes of determining whether to extend this Agreement. References herein
to the term of this Agreement shall refer both to the initial term and
successive terms.
3. Benefits Upon Termination. If the Executive's employment by the
Employers shall be terminated subsequent to a Change in Control and during the
term of this Agreement by (i) the Employers for other than Cause, Disability,
Retirement or the Executive's death or (ii) the Executive for Good Reason, then
the Employers shall
(a) pay to the Executive, in either twenty-four (24) equal monthly
installments beginning with the first business day of the month following the
Date of Termination or in a lump sum as of the Date of Termination (at the
Executive's election), a cash severance amount equal to two (2) times the
Executive's Annual Compensation, and
(b) maintain and provide for a period ending at the earlier of (i) the
expiration of the remaining term of this Agreement as of the Date of Termination
or (ii) the date of the Executive's full-time employment by another employer
(provided that the Executive is entitled under the terms of such employment to
benefits substantially similar to those described in this subparagraph (b)), at
no cost to the Executive, the Executive's continued participation in all group
insurance, life insurance, health and accident insurance, disability insurance
and other employee benefit plans, programs and arrangements offered by the
Employers in which the Executive was entitled to participate immediately prior
to the Date of Termination (excluding (w) the Employers' Employee Stock
Ownership Plan, (y) stock option and restricted stock plans of the Employers and
(z) cash incentive compensation included in Annual Compensation), provided that
in the event that the Executive's participation in any plan, program or
arrangement as provided in this subparagraph (b) is barred, or during such
period any such plan, program or arrangement is discontinued or the benefits
thereunder are materially reduced, the Employers shall arrange to provide the
Executive with benefits substantially similar to those which the Executive was
entitled to receive under such plans, programs and arrangements immediately
prior to the Date of Termination. If substantially similar benefits cannot be
provided to the Executive, then the Employers shall pay to the Executive a cash
amount equal to the Executive's cost of obtaining such benefits on his own,
adjusted for any federal or state income taxes the Executive has to pay on the
cash amount.
4. Limitation of Benefits under Certain Circumstances. If the payments
and benefits pursuant to Section 3 hereof, either alone or together with other
payments and benefits which the Executive has the right to receive from the
Employers, would constitute a "parachute payment" under Section 280G of the
Code, the payments and benefits payable by the Employers pursuant to Section 3
hereof shall be reduced, in the manner determined by the Executive, by the
amount, if any, which is the minimum necessary to result in no portion of the
payments and benefits payable by the Employers under Section 3 being
non-deductible to the Employers pursuant to Section 280G of the Code and subject
to the excise tax imposed under Section 4999 of the Code. The determination of
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any reduction in the payments and benefits to be made pursuant to Section 3
shall be based upon the opinion of independent counsel selected by the
Employers' independent public accountants and paid by the Employers. Such
counsel shall be reasonably acceptable to the Employers and the Executive; shall
promptly prepare the foregoing opinion, but in no event later than thirty (30)
days from the Date of Termination; and may use such actuaries as such counsel
deems necessary or advisable for the purpose. Nothing contained herein shall
result in a reduction of any payments or benefits to which the Executive may be
entitled upon termination of employment under any circumstances other than as
specified in this Section 4, or a reduction in the payments and benefits
specified in Section 3 below zero.
5. Mitigation; Exclusivity of Benefits.
(a) The Executive shall not be required to mitigate the amount of any
benefits hereunder by seeking other employment or otherwise. The amount of
severance to be provided pursuant to Section 3(a) hereof shall not be reduced by
any compensation earned by the Executive as a result of employment by another
employer after the Date of Termination or otherwise, but the amount of benefits
to be provided pursuant to Section 3(b) hereof is subject to reduction as set
forth therein.
(b) The specific arrangements referred to herein are not intended to
exclude any other benefits which may be available to the Executive upon a
termination of employment with the Employers pursuant to employee benefit plans
of the Employers or otherwise.
6. Withholding. All payments required to be made by the Employers
hereunder to the Executive shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Employers may
reasonably determine should be withheld pursuant to any applicable law or
regulation.
7. Nature of Employment and Obligations.
(a) Nothing contained herein shall be deemed to create other than a
terminable at will employment relationship between the Employers and the
Executive, and the Employers may terminate the Executive's employment at any
time, subject to providing any payments specified herein in accordance with the
terms hereof.
(b) Nothing contained herein shall create or require the Employers to
create a trust of any kind to fund any benefits which may be payable hereunder,
and to the extent that the Executive acquires a right to receive benefits from
the Employers hereunder, such right shall be no greater than the right of any
unsecured general creditor of the Employers.
8. Source of Payments. It is intended by the parties hereto that all
payments provided in this Agreement shall be paid in cash or check from the
general funds of the Bank. Further, the Company guarantees such payment and
provision of all amounts and benefits due hereunder to the
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Executive and, if such amounts and benefits due from the Bank are not timely
paid or provided by the Bank, such amounts and benefits shall be paid or
provided by the Company.
9. No Attachment.
(a) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit
of, the Executive, the Bank and their respective successors and assigns.
10. Assignability. The Employers may assign this Agreement and their
rights and obligations hereunder in whole, but not in part, to any corporation,
bank or other entity with or into which either of the Employers may hereafter
merge or consolidate or to which either of the Employers may transfer all or
substantially all of its respective assets, if in any such case said
corporation, bank or other entity shall by operation of law or expressly in
writing assume all obligations of the Employers hereunder as fully as if it had
been originally made a party hereto, but may not otherwise assign this Agreement
or their rights and obligations hereunder. The Executive may not assign or
transfer this Agreement or any rights or obligations hereunder.
11. Notice. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Corporation: Secretary
TierOne Corporation
▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
To the Bank: Secretary
TierOne Bank
▇▇▇▇ ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
To the Executive:
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12. Amendment; Waiver. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officer or officers as may be
specifically designated by the Boards of Directors of the Employers to sign on
their behalf. No waiver by any party hereto at any time of any breach by any
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
13. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United States
where applicable and otherwise by the substantive laws of the State of Nebraska.
14. Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. Regulatory Provisions.
(a) The Employers may terminate the Executive's employment at any
time, but any termination by the Employers, other than termination for Cause,
shall not prejudice the Executive's right to compensation or other benefits
under this Agreement. The Executive shall not have the right to receive
compensation or other benefits for any period after termination for Cause as
defined in Section 1(b) hereof.
(b) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's affairs by a notice
served under Section 8(e)(3) or 8(g)(1) of the Federal Deposit Insurance Act (12
U.S.C. (S)1818(e)(3) or (g)(1)), the Employers' obligations under this Agreement
shall be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Employers may in
its discretion (I) pay the Executive all or part of the compensation withheld
while their contract obligations were suspended and (ii) reinstate (in whole or
in part) any of the obligations which were suspended.
(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
(S)1818(e)(4) or (g)(1)), all obligations of the Employers' under this
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Agreement shall terminate as of the effective date of the order, but vested
rights of the contracting parties shall not be affected.
(d) If the Bank is in default as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act, all obligations of the Employers under this
Agreement shall terminate as of the date of default, but this paragraph shall
not affect any vested rights of the contracting parties.
(e) All obligations under this Agreement shall be terminated, except
to the extent determined that continuation of the Agreement is necessary for the
continued operation of the institution: (I) by the Director of the Office of
Thrift Supervision (or his or her designee) at the time the Federal Deposit
Insurance Corporation enters into an agreement to provide assistance to or on
behalf of the Bank under the authority contained in Section 13(c) of the Federal
Deposit Insurance Act; or (ii) by the Director of the Office of Thrift
Supervision (or his or her designee) at the time the Director (or his or her
designee) approves a supervisory merger to resolve problems related to operation
of the Bank or when the Bank is determined by the Director to be in an unsafe or
unsound condition. Any rights of the parties that have already vested, however,
shall not be affected by such action.
(f) Notwithstanding any other provision of this Agreement to the
contrary, any payments made to the Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with Section
18(k) of the Federal Deposit Insurance Act (12 U.S.C.(S)1828(k)) and the
regulations promulgated thereunder, including 12 C.F.R. Part 359.
18. Reinstatement of Benefits Under Section 17(b). In the event the
Executive is suspended and/or temporarily prohibited from participating in the
conduct of the Bank's affairs by a notice described in Section 17(b) hereof (the
"Notice") during the term of this Agreement and a Change in Control, as defined
herein, occurs, the Employers will assume their obligation to pay and the
Executive will be entitled to receive all of the termination benefits provided
for under Section 2 of this Agreement upon the Bank's receipt of a dismissal of
charges in the Notice.
19. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration, conducted
before a panel of three arbitrators sitting in a location selected by the Bank
within fifty (50) miles from the location of the Bank's main office, in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that the Executive shall be entitled to seek
specific performance of his right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising under or in connection
with this Agreement, other than in the case of a termination for Cause.
20. Payment of Costs and Legal Fees. All reasonable costs and legal fees
paid or incurred by the Executive pursuant to any dispute or question of
interpretation relating to this Agreement shall be paid or reimbursed by the
Bank (which payments are guaranteed by the Company
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pursuant to Section 8 hereof) if the Executive is successful on the merits
pursuant to a legal judgment, arbitration or settlement.
21. Entire Agreement. This Agreement embodies the entire agreement between
the Employers and the Executive with respect to the matters agreed to herein.
All prior agreements between the Employers and the Executive with respect to the
matters agreed to herein are hereby superseded and shall have no force or
effect, except that this Agreement shall not affect or operate to reduce any
benefit or compensation inuring to Executive of a kind elsewhere provided. No
provision of this Agreement shall be interpreted to mean that Executive is
subject to receiving fewer benefits than those available to him without
reference to this Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
Attest: TierOne Bank
________________________________ By:_______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chairman and
Chief Executive Officer
Attest: TierOne Corporation
(as guarantor)
________________________________ By:_______________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chairman and
Chief Executive Officer
Attest: EXECUTIVE
________________________________ By:_______________________________________