a5894983ex102.htm


    Exhibit
10.2

     

    AMENDED
AND RESTATED

    BANKLIBERTY

    TWO-YEAR
CHANGE IN CONTROL AGREEMENT

    


    


    This AGREEMENT originally entered
into as of July 21,
2006 (“Agreement”), 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
is amended and restated in its entirety as of December 17, 2008.

    


    WHEREAS, the Bank continues to
recognize 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 amended and restated
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 and to bring the Agreement into compliance with Section 409A of
the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations
and guidance issued with respect to Section 409A of the Code.

    


    NOW, THEREFORE, in
consideration of the promises and mutual covenants herein contained, it is
hereby agreed as follows:

     

    1.           Term
of Agreement.     

       

      (a)           The
term of this Agreement shall be (i) the initial term, consisting of the period
commencing on July 21, 2006 (the “Effective Date”) and ending on July 21, 2008,
plus (ii) any and all extensions of the initial term made pursuant to Section
1(b) of this Agreement.

    

    


    (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.  As of the date of this restatement the term of the
Agreement had been extended to December 17, 2010.

    


    (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.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    2.          
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 for “Good Reason.”

    ­

    For
purposes of this Section 2, “Good Reason” shall mean the occurrence of any of
the following events without the Executive’s consent:

    


    
      	
               
      

            	
              (i)

            	
              The
      assignment to Executive of duties that constitute a material diminution of
      his authority, duties, or responsibilities (including reporting
      requirements);

            


    

    


    
      	
               
      

            	
              (ii)

            	
              A
      material diminution in Executive’s base
salary;

            


    

    


    
      	
               
      

            	
              (iii)

            	
              Relocation
      of Executive to a location outside a radius of 50 miles of the Company’s
      corporate office; or

            


    

    


    
      	
               
      

            	
              (iv)

            	
              Any
      other action or inaction by the Company that constitutes a material breach
      of this Agreement;

            


    

    


    
      	
               
      

            	
              provided,
      that within ninety (90) days after the initial existence of such event,
      the Company shall be given notice and an opportunity, not less than thirty
      (30) days, to effectuate a cure for such asserted “Good Reason” by
      Executive.  Executive’s resignation hereunder for Good Reason
      shall not occur later than one hundred fifty (150) days following the
      initial date on which the event Executive claims constitutes Good Reason
      occurred.

            


    

    


    (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

        
          

        

      

      
        
        

      

    

     

    3.          
Termination
Benefits.

     

    (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
      parachute payment as noted in paragraph (b) under this
      Section 3.

            


    

     

    
      


      
        	
                 
      

              	
                (ii)

              	
                
                  Continued
      benefit coverage under all Association health and welfare plans which
      Executive participated in as of the date of the Change in Control
      (collectively, the “Employee Benefit Plans”) for a period of 24 months
      following Executive’s termination of employment.  Said coverage
      shall be provided under the same terms and conditions in effect on the
      date of Executive’s termination of employment.  Solely for
      purposes of benefits continuation under the Employee Benefit Plans,
      Executive shall be deemed to be an active
  employee.

                

              


      

       

    

    (b)           Notwithstanding
the preceding provisions of this Section 3, in no event shall the aggregate
payments or benefits to be made or afforded to Executive under said paragraphs
or otherwise (the “Termination Benefits”) constitute an “excess parachute
payment” under Section 280G of the Code or any successor thereto, and to avoid
such a result, Termination Benefits will be reduced, if necessary, to an amount
(the “Non-Triggering Amount”), the value of which is one dollar ($1.00) less
than an amount equal to three (3) times Executive’s “base amount,” as determined
in accordance with said Section 280G.  The allocation of the reduction
required hereby among the Termination Benefits provided by this Section 3 shall
be determined by Executive.

     

    4.          
Notice of Termination.

       

    (a)           Any
purported termination by the Bank or by Executive shall be communicated by
Notice of Termination to the other party hereto.  For purposes of this
Agreement, a “Notice of Termination” shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in detail the facts and circumstances claimed to provide a basis
for termination of Executive’s employment under the provision so
indicated.

    


    (b) “Date of
Termination” shall mean the date specified in the Notice of Termination (which,
in the case of a termination for Cause, shall not be less than thirty (30) days
from the date such Notice of Termination is given).

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    5.          
Source
of Payments.

       

    

    All
payments provided in this Agreement shall be timely paid in cash or check from
the general funds of the Bank.  The Company, however, unconditionally
guarantees payment and provision of all amounts and benefits due hereunder to
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.

    


    6.           Effect
on Prior Agreements and Existing Benefit Plans.

    


    This Agreement contains the entire
understanding between the parties hereto and supersedes any prior agreement
between the Bank and Executive, 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.  Nothing
in this Agreement shall confer upon Executive the right to continue in the
employ of the Bank or shall impose on the Bank any obligation to employ or
retain Executive in its employ for any period.

    


    7.           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, Executive, the
Bank and their respective successors and assigns.

    


    8.           Modification
and Waiver.

    


    (a)           This
Agreement may not be modified or amended except by an instrument in writing
signed by the parties hereto.

    


    (b)           No
term or condition of this Agreement shall be deemed to have been waived, nor
shall there be any estoppel against the enforcement of any provision of this
Agreement, except by written instrument of the party charged with such waiver or
estoppel.  No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

    
9.           Severability.

    


    If, for any reason, any provision of
this Agreement, or any part of any provision, is held invalid, such invalidity
shall not affect any other provision of this Agreement or any part of such
provision not held so invalid, and each such other provision and part thereof
shall to the full extent consistent with law continue in full force and
effect.

     

    10.        
Headings
for Reference Only.

     

    The
headings of sections and paragraphs herein are included solely for convenience
of reference and shall not control the meaning or interpretation of any of the
provisions of this Agreement.  In addition, references herein to the
masculine shall apply to both the masculine and the feminine.

     

    11.        
Governing
Law.

     

    Except to
the extent preempted by federal law, the validity, interpretation, performance,
and enforcement of this Agreement shall be governed by the laws of the State of
Missouri, without regard to principles of conflicts of law of that
State.

     

    12.        
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 Executive within fifty (50) miles
from the location of the Bank, 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
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.

     

    13.        
Payment
of Legal Fees.

     

    All
reasonable legal fees paid or incurred by Executive pursuant to any dispute or
question of interpretation relating to this Agreement shall be paid or
reimbursed by the Bank, only if Executive is successful pursuant to a legal
judgment, arbitration or settlement.

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

    


    14.           Indemnification.

    


    The Company or the Bank shall provide
Executive (including his heirs, executors and administrators) with coverage
under a standard directors’ and officers’ liability insurance policy at its
expense and shall indemnify Executive (and his heirs, executors and
administrators) to the fullest extent permitted under applicable law against all
expenses and liabilities reasonably incurred by him in connection with or
arising out of any action, suit or proceeding in which he may be involved by
reason of his having been a director or officer of the Company or the Bank
(whether or not he continues to be a director or officer at the time of
incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgments, court costs, attorneys’ fees and the
cost of reasonable settlements.

    


    15.           Successors
to the Bank and the Company.

    


    The Bank and the Company shall require
any successor or assignee, whether direct or indirect, by purchase, merger,
consolidation or otherwise, to all or substantially all of the business or
assets of the Bank or the Company, expressly and unconditionally to assume and
agree to perform the Bank’s and the Company’s obligations under this Agreement,
in the same manner and to the same extent that the Bank and the Company would be
required to perform if no such succession or assignment had taken
place.

    


    16.           Required
Provisions.  In the event any of the foregoing provisions of
this Section 16 are in conflict with the terms of this Agreement, this Section
16 shall prevail.

    


    (a) The Bank’s
board of directors may terminate Executive’s employment at any time, but any
termination by the Bank, other than Termination for Cause, shall not prejudice
Executive’s right to compensation or other benefits under this
Agreement.  Executive shall not have the right to receive compensation
or other benefits for any period after termination for Cause as defined in
Section 2(c) hereinabove.

    


    (b) If
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.
§1818(e)(3) or (g)(1); the Bank’s obligations under this contract shall be
suspended as of the date of service, unless stayed by appropriate
proceedings.  If the charges in the notice are dismissed, the Bank may
in its discretion:  (i) pay 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
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. §1818(e)(4) or (g)(1),
all obligations of the Bank under this contract shall terminate as of the
effective date of the order, but vested rights of the contracting parties shall
not be affected.

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

    


    (d) If the
Bank is in default as defined in Section 3(x)(1) of the Federal Deposit
Insurance Act, 12 U.S.C. §1813(x)(1) all obligations of the Bank under this
contract 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 contract shall be terminated, except to the extent
determined that continuation of the contract is necessary for the continued
operation of the Bank:  (i) by the Director of the OTS (or his
designee), 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 Federal Deposit Insurance Act, 12 U.S.C. §1823(c); or (ii) by the Director
of the OTS (or his designee) at the time the Director (or his designee) approves
a supervisory merger to resolve problems related to the operations 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) Any
payments made to employees pursuant to this Agreement, or otherwise, are subject
to and conditioned upon their compliance with 12 U.S.C. §1828(k) and FDIC
regulation 12 C.F.R. Part 359, Golden Parachute and Indemnification
Payments.

    


    17.           Section
409A of the Code.

    


    (a)           This
Agreement is intended to comply with the requirements of Section 409A of the
Code, and specifically, with the “short-term deferral exception” under Treasury
Regulation Section 1.409A-1(b)(4) and the “separation pay exception” under
Treasury Regulation Section 1.409A-1(b)(9)(iii), and shall in all respects be
administered in accordance with Section 409A of the Code.  If any
payment or benefit hereunder cannot be provided or made at the time specified
herein without incurring sanctions on Executive under Section 409A of the Code,
then such payment or benefit shall be provided in full at the earliest time
thereafter when such sanctions will not be imposed.  For purposes of
Section 409A of the Code, all payments to be made upon a termination of
employment under this Agreement may only be made upon a “separation from
service” (within the meaning of such term under Section 409A of the Code), each
payment made under this Agreement shall be treated as a separate payment, the
right to a series of installment payments under this Agreement (if any) is to be
treated as a right to a series of separate payments, and if a payment is not
made by the designated payment date under this Agreement, the payment shall be
made by December 31 of the calendar year in which the designated date
occurs.  To the extent that any payment provided for hereunder would
be subject to additional tax under Section 409A of the Code, or would cause the
administration of this Agreement to fail to satisfy the requirements of Section
409A of the Code, such provision shall be deemed null and void to the extent
permitted by applicable law, and any such amount shall be payable in accordance
with b. below.  In no event shall Executive, directly or indirectly,
designate the calendar year of payment.

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

    


    (b)           If
when separation from service occurs Executive is a “specified employee” within
the meaning of Section 409A of the Code, and if the cash severance payment under
Section 3(a)i. of this Agreement would be considered deferred compensation under
Section 409A of the Code, and, finally, if an exemption from the six-month delay
requirement of Section 409A(a)(2)(B)(i) of the Code is not available (i.e., the
“short-term deferral exception” under Treasury Regulations Section
1.409A-1(b)(4) or the “separation pay exception” under Treasury Section
1.409A-1(b)(9)(iii)), the Bank will make the maximum severance payment possible
in order to comply with an exception from the six month requirement and make any
remaining severance payment under Section 3(a)i. of this Agreement to Executive
in a single lump sum without interest on the first payroll date that occurs
after the date that is six (6) months after the date on which Executive
separates from service.

    


    (c)           If
(x) under the terms of the applicable policy or policies for the insurance or
other benefits specified in Section 3(a)ii. of this Agreement it is not possible
to continue coverage for Executive and him dependents, or (y) when a separation
from service occurs Executive is a “specified employee” within the meaning of
Section 409A of the Code, and if any of the continued insurance coverage or
other benefits specified in Section 3(a)ii. of this Agreement would be
considered deferred compensation under Section 409A of the Code, and, finally,
if an exemption from the six-month delay requirement of Section 409A(a)(2)(B)(i)
of the Code is not available for that particular insurance or other benefit, the
Bank shall pay to Executive in a single lump sum an amount in cash equal to the
present value of the Bank’s projected cost to maintain that particular insurance
benefit (and associated income tax gross-up benefit, if applicable) had
Executive’s employment not terminated, assuming continued coverage for 24
months.  The lump-sum payment shall be made thirty (30) days after
employment termination or, if Section 17(b) applies, on the first payroll date
that occurs after the date that is six (6) months after the date on which
Executive separates from service.

    


    (d)           References
in this Agreement to Section 409A of the Code include rules, regulations, and
guidance of general application issued by the Department of the Treasury under
Internal Revenue Section 409A of the Code.

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    SIGNATURES

    


    IN WITNESS WHEREOF,
BankLiberty and Liberty Bancorp, Inc. have caused this amended and restated
Agreement to be executed and their seals to be affixed hereunto by their duly
authorized officers, and Executive has signed this Agreement, on December 17,
2008.

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              	
                                      ATTEST:

                                    	 	 	
                                      BANKLIBERTY

                                    
	 	 	 	 
	 	 	 	 
	
                                      /s/ Cathy Trusler

                                    	 	
                                      By:

                                    	
                                      /s/ Daniel G. O’Dell

                                    
	
                                      Corporate
      Secretary

                                    	 	 	
                                      For
      the Entire Board of Directors

                                    
	 	 	 	 
	 	 	 	 
	
                                      ATTEST:

                                    	 	 	
                                      LIBERTY
      BANCORP, INC.

                                    
	 	 	 	
                                      (Guarantor)

                                    
	 	 	 	 
	
                                      /s/ Cathy Trusler

                                    	 	
                                      By: 

                                    	
                                      /s/ Daniel G. O’Dell

                                    
	
                                      Corporate
      Secretary

                                    	 	 	
                                      For
      the Entire Board of Directors

                                    
	 	 	 	 
	
                                      [SEAL]

                                    	 	 	 
	 	 	 	 
	
                                      WITNESS:

                                    	 	 	
                                      EXECUTIVE

                                    
	 	 	 	 
	
                                      /s/ Cathy Trusler

                                    	 	 	
                                      /s/ Mark E. Hecker

                                    
	
                                      Corporate
      Secretary

                                    	 	 	
                                      Mark
      E.
Hecker

                                    


                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

    10