EXHIBIT 10.5
Two-Year Change of Control Agreement
This Change of Control Agreement (the "Agreement") is made and entered
into as of [______________], 2001 by and among CharterBank, a federally-
chartered savings bank having an office at 600 Third Avenue, West Point, GA
31833 (the "Bank"), Charter Financial Corp., a federally-chartered corporation
having an office at 600 Third Avenue, West Point, GA 31833 (the "Company")
and[__________________________] (the "Officer").
Introductory Statement
The Bank has reorganized from a federally-chartered mutual savings
bank to a federally-chartered stock savings bank and has become a wholly-owned
subsidiary of the Company, a mid-tier stock holding company, which is majority
owned by First Charter MHC, a mutual holding company (the "Reorganization"). In
connection with the Reorganization, certain shares of the Company's common stock
were sold in an initial public stock offering. The Officer has served the Bank
in an executive capacity for many years and is familiar with the Bank's
operations.
The Board of Directors of the Bank and the Board of Directors of the
Company have concluded that it is in the best interests of the Bank, the Company
and their prospective shareholders to establish a working environment for the
Officer which minimizes the personal distractions that might result from
possible business combinations in which the Company or the Bank might be
involved following the Reorganization. To this end, the Bank and the Company
have decided to provide the Officer with assurance that his compensation will be
continued for a minimum period of two (2) years following termination of
employment (the "Assurance Period") if his employment terminates under specified
circumstances related to a business combination. The Board of Directors of the
Bank and the Board of Directors of the Company have decided to formalize this
assurance by entering into this Change of Control Agreement with the Officer.
The terms and conditions which the Bank, the Company and the Officer
have agreed to are as follows.
Agreement
Section 1. Effective Date; Term; Change of Control and Pending Change
of Control Defined.
----------------------------------------------------------
(a) This Agreement shall take effect on the effective date of the
Reorganization (the "Effective Date") and shall be in effect during the period
(the "Term") beginning on the Effective Date of the Reorganization and ending on
the first anniversary of the date on which the Bank notifies the Executive of
its intent to discontinue the Agreement (the "Initial Expiration Date") or, if
later, the first anniversary of the latest Change of Control or Pending Change
of Control, as defined below, that occurs after the Effective Date and before
the Initial Expiration Date.
-2-
(b) For all purposes of this Agreement, a "Change of Control" shall
be deemed to have occurred upon the happening of any of the following events:
(i) the consummation of a 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 25% 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;
(iii) a complete liquidation or dissolution of the Company;
(iv) the occurrence of any event if, immediately following such
event, at least 50% of the members of the Board of Directors of the Company
do not belong to any of the following groups:
(A) individuals who were members of the Board of Directors of
the Company on the date of this Agreement; or
(B) individuals who first became members of the Board of
Directors of the Company after the date of this Agreement either:
(1) upon election to serve as a member of the Board of
Directors of the Company by 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
-3-
(2) upon election by the shareholders of the Board of
Directors of the Company to serve as a member of such board, but
only if nominated for election by affirmative vote of three-
quarters of the members of the Board of Directors of the Company,
or of a nominating committee thereof, in office at the time of
such first nomination;
provided, however, that such individual's election or nomination did
not result from an actual or threatened election contest (within the
meaning of Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or
consents (within the meaning of Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) other than by or on behalf of the
Board of Directors of the Company; or
(v) any event which would be described in section 1(b)(i), (ii), (iii)
or (iv) if the term "Bank" were substituted for the term "Company" therein.
In no event, however, shall a Change of Control be deemed to have occurred as a
result of (i) any acquisition of securities or assets of the Company, the Bank,
or a subsidiary of either of them, by the Company, the Bank, or any subsidiary
of either of them, or by any employee benefit plan maintained by any of them or
(ii) the conversion of First Charter, MHC to a stock form company and the
issuance of additional shares of the Company in connection therewith. For
purposes of this section 1(b), the term "person" shall have the meaning assigned
to it under sections 13(d)(3) or 14(d)(2) of the Exchange Act.
(c) For purposes of this Agreement, a "Pending Change of Control"
shall mean: (i) the signing of a definitive agreement for a transaction which,
if consummated, would result in a Change of Control; (ii) the commencement of a
tender offer which, if successful, would result in a Change of Control; or (iii)
the circulation of a proxy statement seeking proxies in opposition to management
in an election contest which, if successful, would result in a Change of
Control.
Section 2. Discharge Prior to a Pending Change of Control.
----------------------------------------------
The Bank may discharge the Officer at any time prior to the occurrence
of a Pending Change of Control for any reason or for no reason. In such event:
(a) The Bank shall pay to the Officer (or, in the event of his death,
his estate) his earned but unpaid compensation (including, without limitation,
salary and all other items which constitute wages under applicable law) as of
the date of his termination of employment. This payment shall be made at the
time and in the manner prescribed by law applicable to the payment of wages but
in no event later than 30 days after the date of the Officer's termination of
employment.
(b) The Bank shall provide the benefits, if any, due to the Officer
(or, in the event of his death, his estate, surviving dependents or his
designated beneficiaries) under the employee benefit plans and programs and
compensation plans and programs maintained for the benefit of the
-4-
officers and employees of the Bank. The time and manner of payment or other
delivery of these benefits and the recipients of such benefits shall be
determined according to the terms and conditions of the applicable plans and
programs.
The payments and benefits described in sections 2(a) and (b) shall be referred
to in this Agreement as the "Standard Termination Entitlements."
Section 3. Termination of Employment Due to Death.
--------------------------------------
The Officer's employment with the Bank shall terminate, automatically
and without any further action on the part of any party to this Agreement, on
the date of the Officer's death. In such event, the Bank shall pay and deliver
to his estate and surviving dependents and beneficiaries, as applicable, the
Standard Termination Entitlements.
Section 4. Termination Due to Disability after Change of Control or
Pending Change of Control.
--------------------------------------------------------
The Bank may terminate the Officer's employment during the Term and
after the occurrence of a Change of Control or a Pending Change of Control upon
a determination, by a majority vote of the members of the Board of Directors of
the Bank, acting in reliance on the written advice of a medical professional
acceptable to it, that the Officer is suffering from a physical or mental
impairment which, at the date of the determination, has prevented the Officer
from performing his assigned duties on a substantially full-time basis for a
period of at least one hundred and eighty (180) days during the period of one
(1) year ending with the date of the determination or is likely to result in
death or prevent the Officer from performing his assigned duties on a
substantially full-time basis for a period of at least one hundred and eighty
(180) days during the period of one (1) year beginning with the date of the
determination. In such event:
(a) The Bank shall pay and deliver to the Officer (or in the event of
his death before payment, to his estate and surviving dependents and
beneficiaries, as applicable) the Standard Termination Entitlements.
(b) In addition to the Standard Termination Entitlements, the Bank
shall continue to pay the Officer his base salary, at the annual rate in effect
for him immediately prior to the termination of his employment, during a period
ending on the earliest of: (i) the expiration of one hundred and eighty (180)
days after the date of termination of his employment; (ii) the date on which
long-term disability insurance benefits are first payable to him under any long-
term disability insurance plan covering employees of the Bank (the "LTD
Eligibility Date"); (iii) the date of his death; and (iv) the expiration of the
Assurance Period (the "Initial Continuation Period"). If the end of the Initial
Continuation Period is neither the LTD Eligibility Date nor the date of his
death, the Bank shall continue to pay the Officer his base salary, at an annual
rate equal to sixty percent (60%) of the annual rate in effect for him
immediately prior to the termination of his employment, during an additional
period ending on the earliest of the LTD Eligibility Date, the date of his death
and the expiration of the Assurance Period.
-5-
A termination of employment due to disability under this section 4 shall be
effected by a notice of termination given to the Officer by the Bank and shall
take effect on the later of the effective date of termination specified in such
notice or the date on which the notice of termination is deemed given to the
Officer.
Section 5. Discharge with Cause after Change of Control or Pending
Change of Control.
-------------------------------------------------------
(a) The Bank may terminate the Officer's employment with "Cause"
during the Term and after the occurrence of a Change of Control or Pending
Change of Control, but a termination shall be deemed to have occurred with
"Cause" only if:
(i) the Board of Directors of the Bank and the Board of
Directors of the Company, by separate majority votes of their entire
membership, determine that the Executive should be discharged 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, or any material breach of this
Agreement; and
(ii) at least forty-five (45) days prior to the vote
contemplated by section 1(b)(i), the Bank has provided the Officer
with notice of its intent to discharge the Officer for Cause,
detailing with particularity the facts and circumstances which are
alleged to constitute Cause (the "Notice of Intent to Discharge"); and
(iii) after the giving of the Notice of Intent to Discharge and
before the taking of the vote contemplated by section 5(a)(i), the
Officer (together with his legal counsel, if he so desires) is
afforded a reasonable opportunity to make both written and oral
presentations before the Board of Directors of the Bank for the
purpose of refuting the alleged grounds for Cause for his discharge;
and
(iv) after the vote contemplated by section 5(a)(i), the Bank
has furnished to the Officer a notice of termination which shall
specify the effective date of his termination of employment (which
shall in no event be earlier than the date on which such notice is
deemed given) and include a copy of a resolution or resolutions
adopted by the Board of Directors of the Bank, certified by its
corporate secretary and signed by each member of the Board of
Directors voting in favor of adoption of the resolution(s),
authorizing the termination of the Officer's employment with Cause and
stating with particularity the facts and circumstances found to
constitute Cause for his discharge (the "Final Discharge Notice").
-6-
For purposes of this section 5, no act or failure to act, on the part of the
Officer, shall be considered "willful" unless it is done, or omitted to be done,
by the Officer in bad faith or without reasonable belief that the Officer's
action or omission was in the best interests of the Bank. Any act, or failure
to act, based upon authority given pursuant to a resolution duly adopted by the
Board of Directors of the Bank or based upon the written advice of counsel for
the Bank shall be conclusively presumed to be done, or omitted to be done, by
the Officer in good faith and in the best interests of the Bank.
(b) If the Officer is discharged with Cause during the Term and after
a Change of Control or Pending Change of Control, the Bank shall pay and provide
to him (or, in the event of his death, to his estate, his surviving
beneficiaries and his dependents) the Standard Termination Entitlements only.
Following the giving of a Notice of Intent to Discharge, the Bank may
temporarily suspend the Officer's duties and authority and, in such event, may
also suspend the payment of salary and other cash compensation, but not the
Officer's participation in retirement, insurance and other employee benefit
plans. If the Officer is not discharged, or is discharged without Cause, within
forty-five (45) days after the giving of a Notice of Intent to Discharge,
payments of salary and cash compensation shall resume, and all payments withheld
during the period of suspension shall be promptly restored. If the Officer is
discharged with Cause not later than forty-five (45) days after the giving of
the Notice of Intent to Discharge, all payments withheld during the period of
suspension shall be deemed forfeited and shall not be included in the Standard
Termination Entitlements. If a Final Discharge Notice is given later than forty-
five (45) days, but sooner than ninety (90) days, after the giving of the Notice
of Intent to Discharge, all payments made to the Officer during the period
beginning with the giving of the Notice of Intent to Discharge and ending with
the Officer's discharge with Cause shall be retained by the Officer and shall
not be applied to offset the Standard Termination Entitlements. If the Bank
does not give a Final Discharge Notice to the Officer within ninety (90) days
after giving a Notice of Intent to Discharge, the Notice of Intent to Discharge
shall be deemed withdrawn and any future action to discharge the Officer with
Cause shall require the giving of a new Notice of Intent to Discharge.
Section 6. Discharge without Cause.
-----------------------
The Bank may discharge the Officer without Cause at any time after the
occurrence of a Change of Control or Pending Change of Control, and in such
event:
(a) The Bank shall pay and deliver to the Officer (or in the event of
his death before payment, to his estate and surviving dependents and
beneficiaries, as applicable) the Standard Termination Entitlements.
(b) In addition to the Standard Termination Entitlements:
(i) During the Assurance Period, the Bank shall provide for the
Officer and his dependents continued group life, health (including
hospital ization, medical and major medical), dental, accident and
long-term disability insurance benefits on substantially the same
terms and conditions (including any required premium-sharing
arrangements, co-payments and deductibles) in effect for them
immediately prior to the Officer's resignation. The
-7-
coverage provided under this section 6(b)(i) may, at the election of
the Bank, be secondary to the coverage provided as part of the
Standard Termination Entitlements and to any employer-paid coverage
provided by a subsequent employer or through Medicare, with the result
that benefits under the other coverages will offset the coverage
required by this section 6(b)(i).
(ii) The Bank and the Company shall make a lump sum payment to
the Executive (or, in the event of his death before payment, to his
estate), in an amount equal to the estimated present value of the
salary that Executive would have earned if he had continued working
for the Bank during the Assurance Period at the highest annual rate of
salary achieved during that portion of the employment period which is
prior to Executive's termination of employment with the Bank, where
such present value is to be determined using a discount rate equal to
the applicable short-term federal rate prescribed under section
1274(d) of the Internal Revenue Code of 1986 ("Code"), com pounded
using the compounding period corresponding to the Bank's regular
payroll periods for its officers. Such lump sum shall be paid in lieu
of all other payments of salary provided for under this Agreement in
respect of the period following any such termination.
(iii) The Bank and the Company shall make a lump sum payment to
the Executive (or, in the event of his death before payment, to his
estate), in an amount equal to the payments that would have been made
to Executive under any cash bonus or long-term or short-term cash
incentive compensation plan maintained by, or covering employees of,
the Bank if he had continued working for the Bank during the Assurance
Period and had earned the maximum bonus or incentive award in each
calendar year that ends during the Assurance Period, such payment to
be equal to the product of:
(iv) the maximum percentage rate at which an award was ever
available to Executive under such incentive compensation plan;
multiplied by
(A) the salary that would have been paid to Executive
during each such calendar year at the highest annual rate of salary
achieved during that portion of the employment period which is prior
to Executive's termination of employment with the Bank.
Such payment shall be made (without discounting for early payment) within
thirty (30) days following the Executive's termination of employment.
The payments and benefits described in section 6(b) are referred to in this
Agreement as the "Additional Change of Control Entitlements".
-8-
Section 7. Resignation.
-----------
(a) The Officer may resign from his employment with the Bank at any
time. A resignation under this section 7 shall be effected by notice of
resignation given by the Officer to the Bank and shall take effect on the later
of the effective date of termination specified in such notice or the date on
which the notice of termination is deemed given to the Officer. The Officer's
resignation of any of the positions within the Bank or the Company to which he
has been assigned shall be deemed a resignation from all such positions.
(b) The Officer's resignation shall be deemed to be for "Good
Reason" if the effective date of resignation occurs during the Term, but on or
after the effective date of a Change of Control, and is on account of:
(i) the failure of the Bank (whether by act or omission of the Board
of Directors, or otherwise) to appoint or re-appoint or elect or re-elect
the Officer to the position with Bank that he held immediately prior to the
Change of Control (the "Assigned Office") or to a more senior office;
(ii) if the Officer is or becomes a member of the Board of Directors
of the Bank, the failure of the shareholders of the Bank (whether in an
election in which the Officer stands as a nominee or in an election where
the Officer is not a nominee) to elect or re-elect the Officer to
membership at the expiration of his term of membership, unless such failure
is a result of the Officer's refusal to stand for election;
(iii) a material failure by the Bank, whether by amendment of the
certificate of incorporation or organization, by-laws, action of the Board
of Directors of the Bank or otherwise, to vest in the Officer the
functions, duties, or responsibilities customarily associated with the
Assigned Office; provided that the Officer shall have given notice of such
failure to the Bank, and the Bank has not fully cured such failure within
thirty (30) days after such notice is deemed given;
(iv) any reduction of the Officer's rate of base salary in effect
from time to time, whether or not material, or any failure (other than due
to reasonable administrative error that is cured promptly upon notice) to
pay any portion of the Officer's compensation as and when due;
(v) any change in the terms and conditions of any compensation or
benefit program in which the Officer participates which, either
individually or together with other changes, has a material adverse effect
on the aggregate value of his total compensation package; provided that the
Officer shall have given notice of such material adverse effect to the
Bank, and the Bank has not fully cured such material adverse effect within
thirty (30) days after such notice is deemed given;
-9-
(vi) any material breach by the Company or the Bank of any material
term, condition or covenant contained in this Agreement; provided that the
Officer shall have given notice of such material adverse effect to the
Company and the Bank, and the Company or the Bank have not fully cured such
material adverse effect within thirty (30) days after such notice is deemed
given; or
(vii) a change in the Officer's principal place of employment to a
place that is not the principal executive office of the Bank, or a
relocation of the Bank's principal executive office to a location that is
both more than twenty-five (25) miles away from the Officer's principal
residence and more than twenty-five (25) miles away from the location of
the Bank's principal executive office on the day before the occurrence of
the Change of Control.
In all other cases, a resignation by the Officer shall be deemed to be without
Good Reason. In the event of resignation, the Officer shall state in his notice
of resignation whether he considers his resignation to be a resignation with
Good Reason, and if he does, he shall state in such notice the grounds which
constitute Good Reason. The Officer's determination of the existence of Good
Reason shall be conclusive in the absence of fraud, bad faith or manifest error.
(c) In the event of the Officer's resignation for any reason, the
Bank shall pay and deliver the Standard Termination Entitlements. In the event
of the Officer's resignation with Good Reason, the Bank shall also pay and
deliver the Additional Termination Entitlements.
Section 8. Terms and Conditions of the Additional Termination
Entitlements.
--------------------------------------------------
The Bank and the Officer hereby stipulate that the damages which may
be incurred by the Officer following any termination of employment are not
capable of accurate measurement as of the date first above written and that the
Additional Termination Entitlements constitute reason able damages under the
circumstances and shall be payable without any requirement of proof of actual
damage and without regard to the Officer's efforts, if any, to mitigate damages.
The Bank and the Officer further agree that the Bank may condition the payment
and delivery of the Additional Termination Entitlements on the receipt of: (a)
the Officer's resignation from any and all positions which he holds as an
officer, director or committee member with respect to the Bank or the Company or
any subsidiary or affiliate of either of them; and (b) a release of the Bank and
its officers, directors, shareholders, subsidiaries and affiliates, in form and
substance satisfactory to the Bank, of any liability to the Officer, whether for
compensation or damages, in connection with his employment with the Bank and the
termination of such employment except for the Standard Termination Entitlements
and the Additional Termination Entitlements.
Section 9. No Effect on Employee Benefit Plans or Programs.
-----------------------------------------------
The termination of the Officer's employment during the Assurance
Period or thereafter, whether by the Bank or by the Officer, shall have no
effect on the rights and obligations of the parties hereto under the Bank's
qualified or non-qualified retirement, pension, savings, thrift,
-10-
profit-sharing or stock bonus plans, group life, health (including
hospitalization, medical and major medical), dental, accident and long term
disability insurance plans or such other employee benefit plans or programs, or
compensation plans or programs, as may be maintained by, or cover employees of,
the Bank from time to time; provided, however, that nothing in this Agreement
shall be deemed to duplicate any compensation or benefits provided under any
agreement, plan or program covering the Officer to which the Bank or Company is
a party and any duplicative amount payable under any such agreement, plan or
program shall be applied as an offset to reduce the amounts otherwise payable
hereunder.
Section 10. Successors and Assigns.
----------------------
This Agreement will inure to the benefit of and be binding upon the
Officer, his legal representatives and testate or intestate distributees, and
the Company and the Bank and their respective successors and assigns, including
any successor by merger or consolidation or a statutory receiver or any other
person or firm or corporation to which all or substantially all of the assets
and business of the Company or the Bank may be sold or otherwise transferred.
Failure of the Company to obtain from any successor its express written
assumption of the Company's or Bank's obligations hereunder at least 60 days in
advance of the scheduled effective date of any such succession shall, if such
succession constitutes a Change of Control, constitute Good Reason for the
Officer's resignation on or at any time during the Term following the occurrence
of such succession.
Section 11. Notices.
-------
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
If to the Officer:
[Officer name]
[Officer address]
[Officer address]
If to the Company or the Bank:
Charter Financial Corp.
600 Third Avenue
West Point, GA 31833
Attention: Chairman, Personnel & Compensation Committee
of the Board of Directors
-11-
Section 12. Indemnification for Attorneys' Fees.
-----------------------------------
The Bank and the Company shall indemnify, hold harmless and defend the
Officer against reasonable costs, including legal fees, incurred by him in
connection with or arising out of any action, suit or proceeding in which he may
be involved, as a result of his efforts, in good faith, to defend or enforce the
terms of this Agreement; provided, however, that the Officer shall have
substantially prevailed on the merits pursuant to a judgment, decree or order of
a court of competent jurisdiction or of an arbitrator in an arbitration
proceeding. The determination whether the Officer shall have substantially
prevailed on the merits and is therefore entitled to such indemnification, shall
be made by the court or arbitrator, as applicable. In the event of a settlement
pursuant to a settlement agreement, any indemnification payment under this
section 12 shall be made only after a determination by the members of the Board
(other than the Officer and any other member of the Board to which the Officer
is related by blood or marriage) that the Officer has acted in good faith and
that such indemnification payment is in the best interests of the Bank and the
Company.
Section 13. Severability.
------------
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
Section 14. Waiver.
------
Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be
made in writing, designated as a waiver, and signed by the party against whom
its enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
Section 15. Counterparts.
------------
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same Agreement.
Section 16. Governing Law.
-------------
Except to the extent preempted by federal law, this Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Georgia applicable to contracts entered into and to be performed entirely
within the State of Georgia.
Section 17. Headings and Construction.
-------------------------
The headings of sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any section. Any
reference to a section number shall refer to a section of this Agreement, unless
otherwise stated.
-12-
Section 18. Entire Agreement; Modifications.
-------------------------------
This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof. No modifications of this Agreement shall be valid unless made in
writing and signed by the parties hereto.
Section 19. Required Regulatory Provisions.
------------------------------
The following provisions are included for the purposes of complying
with various laws, rules and regulations applicable to the Bank:
(a) Notwithstanding anything herein contained to the contrary, in no
event shall the aggregate amount of compensation payable to the Officer
hereunder exceed three times the Officer's average annual compensation (within
the meaning of OTS Regulatory Bulletin 27a or any successor thereto) for the
last five consecutive calendar years to end prior to his termination of
employment with the Bank (or for his entire period of employment with the Bank
if less than five calendar years). The compensation payable to the Officer
hereunder shall be further reduced (but not below zero) if such reduction would
avoid the assessment of excise taxes on excess parachute payments (within the
meaning of section 280G of the Code).
(b) Notwithstanding anything herein contained to the contrary, any
payments to the Officer by the Bank, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with section
18(k) of the Federal Deposit Insurance Act ("FDI Act"), 12 U.S.C. (S)1828(k),
and any regulations promulgated thereunder.
(c) Notwithstanding anything herein contained to the contrary, if the
Officer is suspended from office and/or temporarily prohibited from
participating in the conduct of the affairs of the Bank pursuant to a notice
served under section 8(e)(3) or 8(g)(1) of the FDI Act, 12 U.S.C. (S)1818(e)(3)
or 1818(g)(1), the Bank's obligations under this Agreement shall be suspended as
of the date of service of such notice, unless stayed by appropriate proceedings.
If the charges in such notice are dismissed, the Bank, in its discretion, may
(i) pay to the Officer all or part of the compensation withheld while the Bank's
obligations hereunder were suspended and (ii) reinstate, in whole or in part,
any of the obligations which were suspended.
(d) Notwithstanding anything herein contained to the contrary, 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 FDI Act, 12 U.S.C. (S)1818(e)(4) or (g)(1), all prospective
obligations of the Bank under this Agreement shall terminate as of the effective
date of the order, but vested rights and obligations of the Bank and the
Executive shall not be affected.
(e) Notwithstanding anything herein contained to the contrary, if the
Bank is in default (within the meaning of section 3(x)(1) of the FDI Act, 12
U.S.C. (S)1813(x)(1), all prospective obligations of the Bank under this
Agreement shall terminate as of the date of default, but vested rights and
obligations of the Bank and the Officer shall not be affected.
-13-
(f) Notwithstanding anything herein contained to the contrary, all
prospective obligations of the Bank hereunder shall be terminated, except to the
extent that a continuation of this Agreement is necessary for the continued
operation of the Bank: (i) by the Director of the OTS or his designee or the
Federal Deposit Insurance Corporation ("FDIC"), at the time the FDIC enters into
an agreement to provide assistance to or on behalf of the Bank under the
authority contained in section 13(c) of the FDI Act, 12 U.S.C. (S)1823(c); (ii)
by the Director of the OTS or his designee at the time such Director or designee
approves a supervisory merger to resolve problems related to the operation of
the Bank or when the Bank is determined by such Director to be in an unsafe or
unsound condition. The vested rights and obligations of the parties shall not
be affected.
If and to the extent that any of the foregoing provisions shall cease
to be required or by applicable law, rule or regulation, the same shall become
inoperative as though eliminated by formal amendment of this Agreement.
Section 20. Guaranty.
--------
The Company hereby irrevocably and unconditionally guarantees to the
Officer the payment of all amounts, and the performance of all other
obligations, due from the Bank in accordance with the terms of this Agreement as
and when due without any requirement of presentment, demand of payment, protest
or notice of dishonor or nonpayment.
Section 21. Effective Date.
--------------
This Agreement shall become effective (the "Effective Date") upon the
later of the following two dates: (a) the effective date of the Bank's
conversion from a federally chartered mutual savings bank to a stock form
savings bank pursuant to the Reorganization or (b) the date the OTS advises the
Bank in writing that it either approves or has no objection to the terms and
conditions of this Agreement. The Bank, the Company and the Officer each hereby
acknowledge and agree that the terms of this Agreement shall have no force or
effect prior to such Effective Date.
-14-
In Witness Whereof, the Bank and the Company have caused this
Agreement to be executed and the Officer has hereunto set his hand, all as of
the day and year first above written.
_______________________________________
[___________]
CharterBank
Attest:
By ______________________________ By ____________________________________
Name: Name:
Title: Title:
[Seal]
Charter Financial Corp.
Attest:
By ______________________________ By ____________________________________
Name: Name:
Title: Title:
[Seal]