BCB BANCORP, INC.
CHANGE IN CONTROL AGREEMENT
FOR
XXXXXX X. XXXXXXXX
This AGREEMENT is made effective as of November 10, 2005 by and between BCB
BANCORP, INC., (the "Company"), and XXXXXX X. XXXXXXXX (the "Executive"). Any
reference to "Bank" herein shall mean BAYONNE COMMUNITY BANK, a New Jersey
commercial bank or any successor thereto.
WHEREAS, the Company and the Bank recognize the substantial contribution
the Executive has made to the Company and the Bank and the Company and the Bank
wish to protect his position therewith for the period provided in this
Agreement; and
WHEREAS, the Executive has been elected to, and has agreed to serve in the
position of Chief Operating Officer and Chief Financial Officer for the Company
and in the position of Chief Operating Officer and Chief Financial Officer for
the Bank, which are positions of substantial responsibility;
NOW, THEREFORE, in consideration of the contribution of the Executive, and
upon the other terms and conditions hereinafter provided, the parties hereto
agree as follows:
1. TERM OF AGREEMENT
The "term" of this Agreement shall be thirty-six (36) full calendar months from
the effective date of this Agreement set forth above, and shall include any
extension or renewal made pursuant to this Section. Commencing on November 10,
2006 and continuing on November 10th of each year thereafter (the "Anniversary
Date"), this Agreement shall renew for an additional year such that the
remaining term shall be three (3) years unless written notice of non-renewal
("Non-Renewal Notice") is provided to Executive at least thirty (30) days and
not more than sixty (60) days prior to any such Anniversary Date, that this
Agreement shall terminate at the end of thirty-six (36) months following such
Anniversary Date.
2. CHANGE IN CONTROL
This Agreement provides for certain payments and benefits to Executive only
in the event of Change in Control. A "Change in Control" of the Company or the
Bank shall mean a change in control of a nature that:
(a) would be required to be reported in response to Item 1.01 of the
current report on Form 8-K, as in effect on the date hereof, pursuant to Section
13 or 15(d) of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); or
(b) results in a Change in Control of the Company or the Bank within the
meaning of the Bank Holding Company Act, as amended, and applicable rules and
regulations promulgated thereunder (collectively, the "BHCA") as in effect at
the time of the Change in Control; or
(c) without limitation such a Change in Control shall be deemed to have
occurred at such time as:
(i) any "person" (as the term is used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Bank
representing 25% or more of the combined voting power of Company's outstanding
securities and who prevails in a transaction under (iv), except for any
securities purchased by the Bank's employee stock ownership plan or trust; or
(ii) individuals who constitute the Board on the date hereof (the
"Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the date
hereof whose election was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose nomination for election by
the Company's stockholders was approved by the same Nominating Committee serving
under an Incumbent Board, shall be, for purposes of this clause (ii), considered
as though he were a member of the Incumbent Board; or
(iii) a plan of reorganization, merger, consolidation, sale of all or
substantially all the assets of the Company or the Bank or similar transaction
in which the Company or Bank is not the surviving institution occurs; or
(iv) a proxy statement soliciting proxies from stockholders of the Company,
by someone other than the current management of the Company, seeking stockholder
approval of a plan of reorganization, merger or consolidation of the Company or
similar transaction with one or more corporations as a result of which the
outstanding shares of the class of securities then subject to the plan are
exchanged for or converted into cash or property or securities not issued by the
Company.
3. PAYMENTS TO EXECUTIVE UPON CHANGE IN CONTROL
(a) Upon the occurrence of a Change in Control (and even if the Executive's
employment will not terminate as a result of such Change in Control), the
Company or the Bank shall pay the Executive (or in the event of his subsequent
death, his estate), a cash lump sum equal to 2.999 of the Executive's "base
amount" as calculated under Section 280G of the Internal Revenue Code of 1986,
as amended (the "Code") (or any successor thereto); provided, however, that such
amounts shall be subject to applicable withholding taxes. "Base amount"
generally means the Executive's average annual compensation for services
performed for the Company and the Bank which was includible in the Executive's
gross income for the most recent five (5) taxable years ending before the date
of the Change in Control.
(b) Upon the occurrence of a Change in Control, the Executive will have
such rights as specified in any other employee benefit plan (including, but not
limited to, equity compensation plans).
(c) Notwithstanding the preceding paragraphs of this Section 3, in no event
shall the aggregate payments or benefits to be made or afforded to the Executive
(the "Change in Control Benefits") constitute an "excess parachute payment"
under Code Section 280G, and in order to avoid such a result, Change in Control
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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 the Executive's "base amount," as determined in accordance with
Code Section 280G. The allocation of the reduction required hereby among Change
in Control Benefits provided by the preceding paragraphs of this Section 3 shall
be determined by the Executive.
(d) Upon the occurrence of a Change in Control, the acquirer shall be
obligated to provide health insurance coverage to the Executive and his
dependents, at no cost to the Executive, for a period of thirty-six (36) months
from the date of the Change in Control at a level comparable to the health
benefits provided to the Executive and his dependents by the Company and/or the
Bank immediately prior to the Change in Control. Such health insurance benefits
shall not be subject to the reduction described in Section 3(c).
4. 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 Company
or the Bank, provided, however, that in the event that the payment of any
amounts due under Section 3 above is made by the Bank, such payment shall offset
the payment due from the Company hereunder.
5. 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 Company, the Bank and the
Executive, except that this Agreement shall not affect or operate to reduce any
benefit or compensation inuring to the Executive of a kind elsewhere provided.
No provision of this Agreement shall be interpreted to mean that the Executive
is subject to receiving fewer benefits than those available to him without
reference to this Agreement.
6. 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 Company, the Bank and their respective successors and assigns.
7. 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
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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.
8. REQUIRED PROVISIONS
Notwithstanding anything herein contained to the contrary, any payments to
Executive by the Company or 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, 12 U.S.C. Section 1828(k), and the
regulations promulgated thereunder in 12 C.F.R. Part 359.
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.
11. GOVERNING LAW
(a) The validity, interpretation, performance, and enforcement of this
Agreement shall be governed by the laws of the State of New Jersey.
(b) 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 employee within fifty
(50) miles from the location of the Company, in accordance with the rules of the
Judicial Mediation and Arbitration Systems (JAMS) then in effect. Judgment may
be entered on the arbitrator's award in any court having jurisdiction.
12. PAYMENT OF LEGAL FEES
All reasonable 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 Company or the Bank if the Executive is successful on the
merits pursuant to a legal judgment, arbitration or settlement.
13. SUCCESSOR TO THE COMPANY OR BANK
The Company and the Bank shall require any successor or assignee, whether
direct or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Company or the Bank, expressly
and unconditionally to assume and agree to perform the Company's or the Bank's
obligations under this Agreement, in the same manner and to the same extent that
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the Company or the Bank would be required to perform if no such succession or
assignment had taken place.
14. SIGNATURES
IN WITNESS WHEREOF, the Company and the Bank have caused this Agreement to
be executed by its duly authorized officers, and the Executive has signed this
Agreement, on the day and date first above written.
BCB BANCORP, INC.
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Xxxx X. Xxxxx
Chairman
BAYONNE COMMUNITY BANK
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Xxxx X. Xxxxx
Chairman
EXECUTIVE
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx
Chief Operating Officer and
Chief Financial Officer
