EXHIBIT 10.8
TWO YEAR CHANGE OF CONTROL AGREEMENT
by and among
▇▇▇▇▇▇ CITY SAVING BANK,
▇▇▇▇▇▇ CITY BANCORP, INC.,
and
Made and entered into
as of ___________________
TWO-YEAR CHANGE OF CONTROL AGREEMENT
This CHANGE OF CONTROL AGREEMENT (the "Agreement") is made and
entered into as of ________________ by and among ▇▇▇▇▇▇ CITY SAVINGS BANK, a
savings bank organized and operating under the federal laws of the United States
and having an office at West ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(the "Bank"), ▇▇▇▇▇▇ CITY BANCORP, INC., a business corporation organized and
existing under the laws of the State of Delaware and having an ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (the "Company") and
________________________, an individual residing at ______________________
_________________________________________ (the "Officer").
INTRODUCTORY STATEMENT
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 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. 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 date it is signed by the
Officer, Bank and Company (the "Effective Date") and shall be in effect during
the period (the "Term") beginning on the Effective Date 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
second 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.
(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:
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(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
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(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 l (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 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. 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
before payment, 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,
his estate, surviving dependents or designated beneficiaries under the
employee benefit
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plans and programs and compensation plans and programs maintained for the
benefit of the 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 the Officer's 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
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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.
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, by majority vote of its
entire membership, determines that the Officer should be terminated
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
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and stating with particularity the facts and circumstances found to
constitute Cause for his discharge (the "Final Discharge Notice").
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:
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(i) During the Assurance Period, the Bank shall provide for
the Officer and his dependents continued group life, health
(including hospitalization, 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
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 shall make a lump sum payment to the Officer
(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 the
Officer would have earned if he had continued working for the Bank
during the Assurance Period at the highest annual rate of salary
achieved during the period of three (3) years ending immediately
prior to the date of termination (the "Salary Severance Payment").
The Salary Severance Payment shall be computed using the following
formula:
(BS/PR)
SSP=(Sigma)(n)(1) [ _________________ ]
[1 +(I/ PR)](n)
where "SSP" is the amount of the Salary Severance Payment (before
the deduction of applicable federal, state and local withholding
taxes); "BS" is the highest annual rate of salary achieved by the
Officer during the period of three (3) years ending immediately
prior to the date of termination; "PR" is the number of payroll
periods that occur during a year under the Bank's normal payroll
practices; "I" equals the applicable federal short term rate
established under section 1274 of the Internal Revenue Code of 1986
(the "Code") for the month in which the Officer's termination of
employment occurs (the "Short Term AFR") and "n" equals the product
of the Assurance Period at the Officer's termination of employment
(expressed in years and fractions of years) multiplied by the number
of payroll periods that occur during a year under the Bank's normal
payroll practices. The Salary Severance Payment shall be made within
five (5) business days after the Officer's termination of employment
and shall be in lieu of any claim to a continuation of base salary
which the Officer might otherwise have and in lieu of cash severance
benefits under any severance benefits program which may be in effect
for officers or employees of the Bank.
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(iii) The Bank shall make a lump sum payment to the Officer
(or, in the event of his death before payment, to his estate), in an
amount equal to the estimated present value of the annual bonuses
that the Officer would have earned if he had continued working for
the Bank during the Assurance Period at the highest annual rate of
salary achieved during the period of three (3) years ending
immediately prior to the date of termination (the "Bonus Severance
Payment"). The Bonus Severance Payment shall be computed using the
following formula:
BSP = SSP x (ABP / ASP)
where "BSP" is the amount of the Bonus Severance Payment (before the
deduction of applicable federal, state and local withholding taxes);
"SSP" is the amount of the Salary Severance Payment (before the
deduction of applicable federal, state and local withholding taxes);
"ABP" is the aggregate of the annual bonuses paid or declared
(whether or not paid) for the most recent period of three (3)
calendar years to end on or before the Officer's termination of
employment; and "ASP" is the aggregate base salary actually paid to
the Officer during such period of three (3) calendar years
(excluding any year for which no bonus was declared or paid). The
Bonus Severance Payment shall be made within five (5) business days
after the Officer's termination of employment and shall be in lieu
of any claim to a continuation of participation in annual bonus
plans of the Bank which the Officer might otherwise have.
(iv) The Bank shall make a lump sum payment to the Officer
(or, in the event of his death before payment, to his estate), in an
amount equal to the estimated present value of the long-term
incentive bonuses that the Officer would have earned if he had
continued working for the Bank during the Assurance Period (the
"Incentive Severance Payment"). The Incentive Severance Payment
shall be computed using the following formula:
ISP = (SSP / RAP) x (ALTIP / ALTSP) x Y
where "ISP" is the amount of the Incentive Severance Payment (before
the deduction of applicable federal, state and local withholding
taxes); "SSP" is the amount of the Salary Severance Payment (before
the deduction of applicable federal, state and local withholding
taxes); "ALTIP" is the aggregate of the most recently paid or
declared (whether or not paid) long-term incentive compensation
payments (but not more than three (3) such payments) for performance
periods that end on or before the Officer's termination of
employment; and "ALTSP" is the aggregate base salary actually paid
to the Officer during the performance periods covered by the
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payments included in "ALTIP" and excluding base salary paid for any
period for which no long-term incentive compensation payment was
declared or paid; "RAP" is the Assurance Period, expressed in years
and fractions of years; and "Y" is the aggregate (expressed in years
and fractions of years) of the Assurance Period plus the number of
years and fraction of years that have elapsed since the end of the
last performance period for which a long-term incentive payment has
been declared and paid. The Incentive Severance Payment shall be
made within five (5) business days after the Officer's termination
of employment and shall be in lieu of any claim to a continuation of
participation in long-term incentive compensation plans of the Bank
which the Officer might otherwise have. Notwithstanding the
foregoing, the Incentive Severance Payment shall be zero if the
Officer's termination of employment occurs at a time when he is not
covered by any long-term incentive compensation plan.
(v) The Bank shall pay to the Officer (or in the event of his
death, to his estate), a lump sum payment in an amount equal to the
excess (if any) of : (A) the present value of the aggregate benefits
to which he would be entitled under any and all tax-qualified and
non-tax-qualified defined benefit plans maintained by, or covering
employees of, the Bank (the "Pension Plans") if he had continued
working for the Bank during the Assurance Period; over (B) the
present value of the benefits to which the Officer and his spouse
and/or designated beneficiaries are actually entitled under such
plans (the "Pension Severance Payment"). The Pension Severance
Payment shall be computed according to the following formula:
PSP = PPB - APB
where "PSP" is the amount of the Pension Severance Payment (before
deductions for applicable federal, state and local withholding
taxes); "APB" is the aggregate lump sum present value of the actual
vested pension benefits payable under the Pension Plans in the form
of a straight life annuity beginning at the earliest date permitted
under the Pension Plans, computed on the basis of the Officer's life
expectancy at the earliest date on which payments under the Pension
Plans could begin, determined by reference to Table VI of section
1.72-9 of the Income Tax Regulations (the "Assumed Life
Expectancy"), and on the basis of an interest rate assumption equal
to the average bond-equivalent yield on United States Treasury
Securities with a Constant Maturity of 30 Years for the month prior
to the month in which the Officer's termination of employment occurs
(the "30-Year Treasury Rate"); and "PPB" is the lump sum present
value of the pension benefits (whether or not vested) that would be
payable under the Pension Plans in the form of a straight life
annuity beginning at the earliest date permitted under the Pension
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Plans, computed on the basis that the Officer's actual age at
termination of employment is his attained age as of his last
birthday that would occur during the Assurance Period, that his
service for benefit accrual purposes under the Pension Plans is
equal to the aggregate of his actual service plus the Assurance
Period, that his average compensation figure used in determining his
accrued benefit is equal to the highest annual rate of salary
achieved by the Officer during the period of three (3) years ending
immediately prior to the date of termination, that the Officer's
life expectancy at the earliest date on which payments under the
Pension Plans could begin is the Assumed Life Expectancy and that
the interest rate assumption used is equal to the 30-Year Treasury
Rate. The Pension Severance Payment shall be made within five (5)
business days after the Officer's termination of employment and
shall be in lieu of any claim to any actual increase in his accrued
benefit in the Pension Plans in respect of the Assurance Period.
(vi) The Bank shall pay to the Officer (or in the event of his
death, to his estate) a lump sum payment in an amount equal to the
present value of the additional employer contributions that would
have been credited directly to his account(s) under any and all
tax-qualified and non-tax qualified defined contribution plans
maintained by, or covering employees of, the Bank (the "Non-ESOP DC
Plans"), plus the fair market value of the additional shares of
employer securities or other property that would have been allocated
to his account as a result of employer contributions under any
tax-qualified leveraged employee stock ownership plan and any
related non-tax-qualified supplemental plan maintained by, or
covering employees of, the Bank (the "ESOP Plans") if he had
continued in employment during the Assurance Period (the "Defined
Contribution Severance Payment"). The Defined Contribution Severance
Payment shall be computed according to the following formula:
DCSP = [SSP x (EC / BS) + [(STK + PROP) x Y]
where: "DCSP" is the amount of the Defined Contribution Severance
Payment (before deductions for applicable federal, state and local
withholding taxes); "SSP" is the amount of the Salary Severance
Payment (before deductions for applicable federal, state and local
withholding taxes); "EC" is the amount of employer contributions
actually credited to the Officer's accounts under the Non-ESOP Plans
for the last plan year to end before his termination of employment;
"BS" is the Officer's compensation taken into account in computing
EC; "Y" is the aggregate (expressed in years and fractions of years)
of the Assurance Period and the number of years and fractions of
years that have elapsed between the end of plan year for which EC
was computed and the date of the Officer's termination of
employment;
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"STK" is the fair market value (determined by the final reported
sales price for stock of the same class on the last trading day
before the Officer's termination of employment) of the employer
securities actually allocated to the Officer's accounts under the
ESOP Plans in respect of employer contributions and dividends
applied to loan amortization payments for the last plan year to end
before his termination of employment; and "PROP" is the fair market
value (determined as of the day before the Officer's termination of
employment using the same valuation methodology used to value the
assets of the ESOP Plans) of the property other than employer
securities actually allocated to the Officer's accounts under the
ESOP Plans in respect of employer contributions and dividends
applied to loan amortization payments for the last plan year to end
before his termination of employment.
(vii) At the election of the Bank made within 30 days
following the Officer's termination of employment, upon the
surrender of options or appreciation rights issued to the Officer
under any stock option and appreciation rights plan or program
maintained by, or covering employees of, the Bank, a lump sum
payment in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share
of stock of the same class as the stock subject to the option
or appreciation right, determined as of the date of
termination of employment, over (II) the exercise price per
share for such option or appreciation right, as specified in
or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which options
or appreciation rights are being surrendered.
For the purpose of computing this payment, the Officer shall be
deemed fully vested in all options and appreciation rights under any
stock option or appreciation rights plan or program maintained by,
or covering employees of, the Bank, even if he is not vested under
such plan or program.
(viii) At the election of the Bank made within 30 days
following the Officer's termination of employment, upon the
surrender of any shares awarded to the Officer under any restricted
stock plan maintained by, or covering employees of, the Bank, the
Bank shall make a lump sum payment in an amount equal to the product
of:
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(A) the fair market value of a share of stock of the
same class of stock granted under such plan, determined as of
the date of the Officer's termination of employment;
multiplied by
(B) the number of shares which are being surrendered.
For purposes of computing this payment, the Officer shall be deemed
fully vested in all shares awarded under any restricted stock plan
maintained by, or covering employees of, the Bank, even if he is not
vested under such plan.
The payments and benefits described in section 6(b) are referred to in this
Agreement as the "Additional Change of Control Entitlements".
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
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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 failure within thirty (30)
days after such notice is deemed given;
(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 failure 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
14
reasonable 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 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, 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,
15
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:
__________________________
__________________________
__________________________
If to the Company or the Bank:
▇▇▇▇▇▇ City Bancorp, Inc.
West ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chairman, Human Resources Committee
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood LLP
Two World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
SECTION 12. INDEMNIFICATION OR ATTORNEYS' FEES.
(a) The Bank shall indemnify, hold harmless and defend the Officer
against reasonable costs, including legal fees and expenses, incurred by him in
connection with or arising out of any action, suit or proceeding (including any
tax controversy) in which he may be involved, as a result of his efforts, in
good faith, to defend or enforce the terms of this Agreement. For purposes of
this Agreement, any settlement agreement which provides for payment of any
amounts in settlement of the Bank's obligations hereunder shall be conclusive
evidence of the Officer's entitlement to indemnification hereunder, and any such
indemnification payments shall be in addition to amounts payable pursuant to
such settlement agreement, unless such settlement agreement expressly provides
otherwise.
(b) The Bank's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Bank may have against the Officer or others. In no event
shall the Officer be obligated to seek other employment or take any other action
by way of mitigation of the amounts payable to the Officer under any of the
provisions of this Agreement and such amounts shall not be reduced whether or
not the Officer obtains other
16
employment. Unless it is determined that the Officer has acted frivolously or in
bad faith, the Bank shall pay as incurred, to the full extent permitted by law,
all legal fees and expenses which the Officer may reasonably incur as a result
of or in connection with his consultation with legal counsel or arising out of
any action, suit, proceeding, tax controversy or contest (regardless of the
outcome thereof) by the Bank, the Officer or others regarding the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any contest by the
Officer about the amount of any payment pursuant to this Agreement), plus in
each case interest on any delayed payment at the applicable Federal rate
provided for in section 7872(f)(2)(A) of the Code.
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 New Jersey applicable to contracts entered into and to be performed
entirely within the State of New Jersey.
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.
17
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, including, but not limited to, the agreement entitled One Year
Change of Control Agreement entered into by and among the Company, Bank and
Officer on July 13, 1999. 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 Company or the Bank:
(a) Notwithstanding anything herein contained to the contrary, in no
event shall the aggregate amount of compensation payable to the Officer pursuant
to Section 6(b) of this Agreement (exclusive of amounts described in Section
6(b)(vii) or (viii)) exceed three times the Officer's average annual total
compensation for the last five consecutive calendar years to end prior to the
Officer's termination of employment with the Bank (or for the Officer's entire
period of employment with the Bank if less than five calendar years).
(b) Notwithstanding anything herein contained to the contrary, any
payments to the Officer 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 ("FDI Act"), 12 U.S.C.
Section 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. Section
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 Officer 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. Section 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 Officer
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. Section 1813(x)(1), all
18
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.
(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 Office of Thrift Supervision
("OTS") or his or her 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.
Section 1823(c);
(ii) by the Director of the OTS or his or her 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 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.
19
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.
_____________________________________
__________________________
▇▇▇▇▇▇ CITY SAVINGS BANK
Attest:
By_____________________________ By___________________________________
Name: Name:
Title: Title:
[Seal]
▇▇▇▇▇▇ CITY BANCORP, INC
Attest:
By_____________________________ By___________________________________
Name: Name:
Title: Title:
[Seal]
20
APPENDIX A
The following executive officers are parties to the Form of Two-Year Change in
Control Agreement by and among ▇▇▇▇▇▇ City Savings Bank and ▇▇▇▇▇▇ City Bancorp,
Inc.:
(1) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(2) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(3) V. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(4) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(5) ▇▇▇▇▇ ▇. ▇▇▇▇▇
(6) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(7) ▇▇▇▇▇▇▇ ▇. ▇▇▇
(8) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
21
