Exhibit 10(c)
EMPLOYMENT AGREEMENT
by and between
U.S.B. HOLDING CO., INC.
UNION STATE BANK
and
XXXXXX X. XXXXXXXX
Made and Entered Into As of
July 28, 2004
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of
July 28, 2004 by and between U.S.B. HOLDING CO., INC., a publicly held business
corporation organized and operating under the laws of the State of Delaware (the
"Company") and Union State Bank (the "Bank"), both having an office at 000 Xxxxx
Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx 00000 and XXXXXX X. XXXXXXXX, an individual
residing at 00 Xxxxxx Xxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000 ("Xx. Xxxxxxxx").
WITNESSETH:
WHEREAS, Xx. Xxxxxxxx currently serves the Company and the Bank in the
capacity of Senior Executive Vice President, Chief Financial Officer and
Assistant Secretary; and
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WHEREAS, the Company and the Bank desire to assure for themselves the
continued availability of Xx. Xxxxxxxx'x services and the ability of Xx.
Xxxxxxxx to perform such services; and
WHEREAS, Xx. Xxxxxxxx is willing to continue to serve the Company and
the Bank on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions hereinafter set forth, the Company and the Bank and Xx.
Xxxxxxxx hereby agree as follows:
Section 1. Employment
The Company and the Bank agree to continue to employ Xx. Xxxxxxxx in
the capacities stated above, and Xx. Xxxxxxxx hereby agrees to such continued
employment, during the period and upon the terms and conditions set forth in
this Agreement.
Section 2. Employment Period; Remaining Unexpired Employment Period
(a) The terms and conditions of this Agreement shall be and remain in
effect during the period of employment established under this Section 2
("Employment Period"). The Employment Period shall be for a term of three years
beginning on the date of this Agreement and ending on the third anniversary date
of this Agreement (an "Anniversary Date"), plus such extensions, if any, as are
provided for in this Agreement or otherwise agreed to by the Boards of Directors
of the Company and the Bank (collectively, the "Boards").
(b) Nothing in this Agreement shall be deemed to prohibit the Company
and/or the Bank at any time from terminating Xx. Xxxxxxxx'x employment during
the Employment Period with or without notice for any reason; provided, however,
that the relative rights and obligations of the Company and the Bank and Xx.
Xxxxxxxx in the event of any such termination shall be determined under this
Agreement.
Section 3. Duties
Xx. Xxxxxxxx shall serve as Senior Executive Vice President, Chief
Financial Officer and Assistant Secretary of the Company and the Bank, having
such power, authority and responsibility and performing such duties as are
prescribed by or under the By-Laws of the Company or the Bank and as are
customarily associated with such position. Xx. Xxxxxxxx shall devote his full
business time and attention (other than during weekends, holidays, approved
vacation periods, and periods of illness or approved leaves of absence) to the
business and affairs of the Company and the Bank and shall use his best efforts
to advance the interests of the Company and the Bank.
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Section 4. Cash Compensation
In consideration for the services to be rendered by Xx. Xxxxxxxx
hereunder, the Company and the Bank shall together pay to him a salary at an
initial annual rate of TWO HUNDRED TWENTY FIVE THOUSAND DOLLARS ($225,000),
payable in approximately equal installments in accordance with the Company's and
Bank's customary payroll practices for senior officers. On each Anniversary Date
occurring during the Employment Period, Xx. Xxxxxxxx'x annual rate of salary
shall be reviewed and increased as determined by the Chairman of the Board,
President and Chief Executive Officer of the Company and/or the Bank. In
addition to salary, Xx. Xxxxxxxx may receive other cash compensation from the
Company or the Bank for services hereunder at such times, in such amounts and on
such terms and conditions as determined by the Chairman of the Board, President
and Chief Executive Officer of the Company and/or the Bank from time to time.
The Company and the Bank agree to pay to Xx. Xxxxxxxx a minimum annual
bonus of 1.0 percent, or a percent as otherwise provided on mutual agreement
between the parties, to be computed based upon the net profits realized by the
consolidated earnings of the Company and the Bank and their affiliates in
accordance with the Executive Compensation Plan which has been adopted by the
Board.
Xx. Xxxxxxxx shall be granted stock options by the Company of no less
than 48,426 shares each year during the term of this Agreement under the
Company's Employee Stock Option Plans as may be established by the Company, such
stock options to be adjusted for stock dividends and stock splits after the date
of this Agreement by the Company during the term of this Agreement. Upon the
exercise of options with existing owned stock, additional options to purchase
stock will be issued to Xx. Xxxxxxxx in an amount equivalent to such Company
stock utilized in the exercise. In addition, if Xx. Xxxxxxxx sells existing
owned stock or stock acquired as a result of such exercise of options to pay
income taxes as a result of the exercise of options or sells stock acquired upon
exercise of options ("cashless exercise"), Xx. Xxxxxxxx shall be awarded new
options to purchase Company stock equivalent to the number of shares of Company
stock sold under the circumstances described in this sentence.
The foregoing salary shall be in addition to the monthly Board fees
presently paid to Xx. Xxxxxxxx or as hereafter provided by the Boards or any
Board of Directors of an affiliate of the Company or the Bank.
Xx. Xxxxxxxx, at his option, shall be allowed to defer any portion of
his cash compensation in accordance with any plan approved by the Company or the
Bank.
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Section 5. Insurance
If Xx. Xxxxxxxx should become disabled during the term of this
Agreement, the Company and the Bank will compensate Xx. Xxxxxxxx for the
difference between any disability insurance, the premiums for which are paid by
the Company and the Bank, and Xx. Xxxxxxxx'x full salary for the balance of the
term of this Agreement and thereafter for a period of six months after the
termination of this Agreement. Full fringe benefits will continue through the
earlier of (i) the balance of the term of this Agreement or (ii) the period of
Xx. Xxxxxxxx'x disability.
In accordance with the foregoing, the Company and/or the Bank will
maintain and pay the premiums for the following life insurance policy on the
life of Xx. Xxxxxxxx: Universal Life Policy No. 00122102 of Security Mutual Life
Insurance Company in the amount of $1,000,000. The beneficiaries under the
foregoing policy of insurance shall be designated by Xx. Xxxxxxxx.
Section 6. Employee Benefit Plans and Programs
During the Employment Period, Xx. Xxxxxxxx shall be treated as an
employee of the Company and the Bank and shall be entitled to participate in and
receive benefits under any and all qualified or non-qualified retirement,
pension, savings, profit-sharing or stock bonus plans, any and all group life,
health (including hospitalization, medical and major medical), dental, accident
and long-term disability insurance plans, and any other employee benefit and
compensation plans (including but not limited to, any incentive compensation
plans or programs, stock option and appreciation rights plans and restricted
stock plans) as may from time to time be maintained by, or cover employees of,
the Company or the Bank, in accordance with the terms and conditions of such
employee benefit plans and programs and compensation plans and programs which
are consistent with the Company's and the Bank's customary practices.
Section 7. Indemnification and Insurance
(a) During the Employment Period and for a period of six (6) years
thereafter, the Company or the Bank shall cause Xx. Xxxxxxxx to be covered by
and named as an insured under any policy or contract of insurance obtained by it
to insure its directors and officers against personal liability for acts or
omissions in connection with service as an officer or director of the Company or
the Bank or service in other capacities at the request of the Company or the
Bank. The coverage provided to Xx. Xxxxxxxx pursuant to this Section 7 shall be
of the same scope and on the same terms and conditions as the coverage (if any)
provided to other officers or directors of the Company and the Bank.
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(b) To the maximum extent permitted under applicable law, during the
Employment Period and for a period of six (6) years thereafter, the Company and
the Bank shall indemnify Xx. Xxxxxxxx against and hold him harmless from any
costs, liabilities, losses and expenses to the fullest extent and on the most
favorable terms and conditions that similar indemnification is offered to any
director or officer of the Company, the Bank or any subsidiary or affiliate
thereof.
Section 8. Outside Activities
Xx. Xxxxxxxx may serve as a member of a board of directors of such
business, community and charitable organizations as he may disclose to and as
may be approved by the Chairman of the Board, President and Chief Executive
Officer of the Company and/or the Bank, which approval shall not be unreasonably
withheld; provided, however, that such service shall not materially interfere
with the performance of his duties under this Agreement. Xx. Xxxxxxxx may also
engage in personal business and investment activities which do not materially
interfere with the performance of his duties hereunder; provided, however, that
such activities are not prohibited under any code of conduct or investment or
securities trading policy established by the Company and/or Bank and generally
applicable to all similarly situated executives. Xx. Xxxxxxxx may also serve as
an officer or director of any subsidiary of the Company or the Bank. If Xx.
Xxxxxxxx is discharged or suspended, or is subject to any regulatory prohibition
or restriction with respect to participation in the affairs of the Company or
the Bank, he shall continue to perform services for the Company and the Bank in
accordance with this Agreement but shall not directly or indirectly provide
services to or participate in the affairs of the Company and the Bank in a
manner inconsistent with the terms of such discharge or suspension or any
applicable regulatory order.
Section 9. Working Facilities and Expenses
Xx. Xxxxxxxx'x principal place of employment shall be at the Company's
and the Bank's executive offices at the address first above written, or at such
other location at which the Company or the Bank shall maintain its principal
executive offices, or at such other location as the Company and the Bank and Xx.
Xxxxxxxx may mutually agree upon. The Company or the Bank shall provide Xx.
Xxxxxxxx at his principal place of employment with a private office, secretarial
services, an automobile, and other support services and facilities suitable to
his position with the Company and the Bank and necessary or appropriate in
connection with the performance of his assigned duties under this Agreement. The
Company or the Bank shall provide to Xx. Xxxxxxxx for his exclusive use an
automobile owned or leased by the Company or the Bank appropriate to his
position, to be used in the performance of his duties hereunder, including
commuting to and from his personal residence. The Company or the Bank shall
reimburse Xx. Xxxxxxxx for his ordinary and necessary business expenses,
including, without limitation, all expenses associated with his business use of
the aforementioned automobile, fees for memberships in such clubs and
organizations as Xx. Xxxxxxxx and the Company or the Bank shall mutually agree
are necessary and appropriate for business purposes, and his travel and
entertainment expenses incurred in connection with the performance of his duties
under this Agreement, in each case upon presentation to the Company or the Bank
of an itemized account of such expenses in such form as the Company or the Bank
may reasonably require.
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The Company and the Bank shall specifically pay the annual membership
fees of one Country Club membership for Xx. Xxxxxxxx.
Section 10. Vacation
Xx. Xxxxxxxx shall be entitled annually to vacation time of five (5)
weeks in total and two (2) personal days, or any additional vacation and
personal time agreed to by the parties or permitted by Company or Bank policy.
Section 11. Termination of Employment with Severance Benefits
(a) Xx. Xxxxxxxx shall be entitled to the severance benefits described
herein in the event that his employment with the Company or the Bank terminates
during the Employment Period under any of the following circumstances:
(i) Xx. Xxxxxxxx'x voluntary resignation from employment with the
Company and the Bank within ninety (90) days following:
(A) the failure of the Boards to appoint or re-appoint or elect or
re-elect Xx. Xxxxxxxx to the office of Senior Executive Vice President, Chief
Financial Officer and Assistant Secretary (or a more senior office) of the
Company and the Bank;
(B) the expiration of a thirty (30) day period following the date on
which Xx. Xxxxxxxx gives written notice to the Company and/or the Bank of its
material failure, whether by amendment of the Company's or the Bank's
Organization Certificate or By-laws, action of the Boards or the Company's or
the Bank's stockholders or otherwise, to vest in Xx. Xxxxxxxx the functions,
duties, or responsibilities prescribed in Section 3 of this Agreement, unless,
during such thirty (30) day period, the Company and/or the Bank cures such
failure in a manner determined by Xx. Xxxxxxxx and the Boards to be
satisfactory; or
(C) the expiration of a thirty (30) day period following the date on
which Xx. Xxxxxxxx gives written notice to the Company and/or the Bank of its
material breach of any term, condition or covenant contained in this Agreement
(including, without limitation any reduction of Xx. Xxxxxxxx'x rate of base
salary in effect from time to time and any change in the terms and conditions of
any compensation or benefit program in which Xx. Xxxxxxxx participates which,
either individually or together with other changes, has a material adverse
effect on the aggregate value of his total compensation package), unless, during
such thirty (30) day period, the Company and/or the Bank cures such failure in a
manner determined by Xx. Xxxxxxxx and the Boards to be satisfactory; or
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(ii) Xx. Xxxxxxxx'x death; or
(iii) subject to the provisions of Section 12, the termination of Xx.
Xxxxxxxx'x employment with the Company or the Bank for any other reason not
described in Section 11(a).
(b) Upon the termination of Xx. Xxxxxxxx'x employment with the Company
and/or the Bank under circumstances described in Section 11(a) of this
Agreement, the Company or the Bank shall pay and provide to Xx. Xxxxxxxx (or, in
the event of his death, to his estate):
(i) his earned but unpaid compensation (including, without limitation,
all items which constitute wages under Section 190.1 of the New York Labor Law
and the payment of which is not otherwise provided for under this Section 11(b))
as of the date of the termination of his employment with the Company and the
Bank, such payment to be made at the time and in the manner prescribed by law
applicable to the payment of wages but in no event later than thirty (30) days
after termination of employment;
(ii) the benefits, if any, to which he is entitled as a former employee
under the employee benefit plans and programs and compensation plans and
programs maintained for the benefit of the Company's and the Bank's officers and
employees;
(iii) continued group life, health (including hospitalization, medical
and major medical and the insurance provided under Section 5), dental, accident
and long term disability insurance benefits, in addition to that provided
pursuant to Section 11(b)(ii), and after taking into account the coverage
provided by any subsequent employer, if and to the extent necessary to provide
for Xx. Xxxxxxxx, for the Remaining Unexpired Employment Period, coverage
equivalent to the coverage to which he would have been entitled under such plans
(as in effect on the date of his termination of employment, or, if his
termination of employment occurs after a Change of Control, on the date of such
Change of Control, whichever benefits are greater), if he had continued working
for the Company and the Bank during the Remaining Unexpired Employment Period at
the highest annual rate of compensation achieved during that portion of the
Employment Period which is prior to Xx. Xxxxxxxx'x termination of employment
with the Company or the Bank;
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(iv) within thirty (30) days following his termination of employment
with the Company and/or the Bank, a lump sum payment, in an amount equal to the
present value of the salary that Xx. Xxxxxxxx would have earned if he had
continued working for the Company and the Bank for one year at the highest
annual rate of salary achieved during that portion of the Employment Period
which is prior to Xx. Xxxxxxxx'x termination of employment with the Company and
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"), compounded using the compounding
period corresponding to the Company's and the Bank's regular payroll periods for
its officers, such lump sum to be paid in lieu of all other payments of salary
provided for under this Agreement in respect of the period following any such
termination. At the option of Xx. Xxxxxxxx, such payments may be made in equal
monthly installments over a period of not less than three years, nor more than
five years, in which case such payments will not be discounted;
(v) within thirty (30) days following his termination of employment
with the Company and/or the Bank, a lump sum payment in an amount equal to the
present value of the additional employer contributions to which he would have
been entitled under any and all qualified and non-qualified defined contribution
plans maintained by, or covering employees of, the Company and the Bank, if he
were 100% vested thereunder and had continued working for the Company and the
Bank, during the Remaining Unexpired Employment Period at the highest annual
rate of compensation achieved during that portion of the Employment Period which
is prior to Xx. Xxxxxxxx'x termination of employment with the Company or the
Bank, and making the maximum amount of employee contributions, if any, required
under such plan or plans, such present value to be determined on the basis of a
discount rate, compounded using the compounding period that corresponds to the
frequency with which employer contributions are made to the relevant plan, equal
to the applicable PBGC Rate. At the option of Xx. Xxxxxxxx, such payments may be
made in equal monthly installments over a period of not less than three, nor
more than five years, in which case such payments will not be discounted;
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(vi) the payment that would have been made to Xx. Xxxxxxxx under any
cash bonus or long-term or short-term cash incentive compensation plan
maintained by, or covering employees of, the Company or the Bank, if he had
continued working for the Company or the Bank during the Remaining Unexpired
Employment Period and had earned the maximum bonus or incentive award in each
calendar year that ends during the Remaining Unexpired Employment Period, such
payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available
to Xx. Xxxxxxxx under such incentive compensation plan, multiplied by
(B) net income of the Company for the most recent fiscal year which
is prior to Xx. Xxxxxxxx'x termination of employment with the Company;
such payments to be made in a lump sum payment in an amount equal to
the present value of such payments as if made in accordance with Company's
and/or Bank's Executive Bonus Plan, 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 Code, within thirty (30) days following Xx.
Xxxxxxxx'x termination of employment. At the option of Xx. Xxxxxxxx, such
payments may be made in equal monthly installments over a period of not less
than three, nor more than five years, in which case such payments will not be
discounted;
(vii) at the election of the Company and the Bank made within thirty
(30) days following his termination of employment with the Company and the Bank,
upon the surrender of stock options or stock appreciation rights issued to Xx.
Xxxxxxxx under any stock option and appreciation rights plan or program
maintained by, or covering employees of, the Company and 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 purposes of this Section 11(b)(vii) and for purposes of determining
Xx. Xxxxxxxx'x right following his termination of employment with the Company or
Bank to exercise any options or appreciation rights not surrendered pursuant
hereto, Xx. Xxxxxxxx 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 Company or Bank, even if he
is not vested under such plan or program, and shall have a period of three
months from the date of termination of employment to exercise such stock options
or appreciation rights.
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(viii) at the election of the Company or the Bank made within thirty
(30) days following Xx. Xxxxxxxx'x termination of employment with the Company
and the Bank, upon the surrender of any shares awarded to Xx. Xxxxxxxx under any
restricted stock plan maintained by, or covering employees of, the Company and
the Bank, a lump sum payment in an amount equal to the product of:
(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 Xx. Xxxxxxxx
termination of employment; multiplied by
(B) the number of shares which are being surrendered.
For purposes of this Section 11(b)(viii) and for purposes of
determining Xx. Xxxxxxxx'x right following his termination of employment with
the Company and the Bank to any stock not surrendered pursuant hereto, Xx.
Xxxxxxxx shall be deemed fully vested in all shares awarded under any restricted
stock plan maintained by, or covering employees of, the Company and the Bank,
even if he is not vested under such plan;
(ix) the title to the car then currently provided to Xx. Xxxxxxxx shall
be transferred to Xx. Xxxxxxxx.
The Company and the Bank and Xx. Xxxxxxxx hereby stipulate that the damages
which may be incurred by Xx. Xxxxxxxx following any such termination of
employment are not capable of accurate measurement as of the date first above
written and that the payments and benefits contemplated by this Section 11(b)
constitute reasonable damages under the circumstances and shall be payable
without any requirement of proof of actual damage and without regard to Xx.
Xxxxxxxx'x efforts, if any, to mitigate damages. The Company and the Bank and
Xx. Xxxxxxxx further agree that the Company and the Bank may condition the
payments and benefits (if any) due under Sections 11(b)(iii), (iv), (v), (vi),
and (vii) on the receipt of Xx. Xxxxxxxx'x resignation from any and all
positions which he holds as an officer, director or committee member with
respect to the Company, the Bank or any subsidiary or affiliate of either of
them.
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Section 12. Termination without Additional Company/Bank Liability
(a) In the event that Xx. Xxxxxxxx employment with the Company and the
Bank shall terminate during the Employment Period on account of:
(i) the discharge of Xx. Xxxxxxxx for "cause," which, for purposes of
this Agreement shall mean: (A) Xx. Xxxxxxxx intentionally engages in dishonest
conduct in connection with his performance of services for the Company or the
Bank resulting in his conviction of a felony; (B) Xx. Xxxxxxxx is convicted of,
or pleads guilty or nolo contendere to, a felony or any crime involving moral
turpitude; (C) Xx. Xxxxxxxx willfully fails or refuses to perform his duties
under this Agreement and fails to cure such breach within sixty (60) days
following written notice thereof from the Company or the Bank; (D) Xx. Xxxxxxxx
breaches his fiduciary duties to the Company or the Bank for personal profit; or
(E) Xx. Xxxxxxxx'x willful breach or violation of any law, rule or regulation
(other than traffic violations or similar offenses), or final cease and desist
order in connection with his performance of services for the Company or the
Bank;
(ii) Xx. Xxxxxxxx'x voluntary resignation from employment with the
Company and the Bank for reasons other than those specified in Section 11(a); or
(iii) a determination that Xx. Xxxxxxxx is eligible for long-term
disability benefits under the Company's or Bank's long-term disability insurance
program or, if there is no such program, under the federal Social Security Act;
then the Company and the Bank shall have no further obligations under this
Agreement, other than the payment to Xx. Xxxxxxxx (or, in the event of his
death, to his estate) of his earned but unpaid salary as of the date of the
termination of his employment, and the provision of such other benefits, if any
(including but not limited to the benefits contemplated by Sections 5 and 7), to
which he is entitled as a former employee under the employee benefit plans and
programs, compensation plans and programs, and indemnification and insurance
plans and programs maintained by, or covering employees of, the Company or the
Bank.
(b) For purposes of Section 12(a)(i)(A) or (B), no act or failure to
act, on the part of Xx. Xxxxxxxx, shall be considered "willful" unless it is
done, or omitted to be done, by Xx. Xxxxxxxx in bad faith or without reasonable
belief that Xx. Xxxxxxxx'x action or omission was in the best interests of the
Company or the Bank. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Boards or based upon the written
advice of counsel for the Company or the Bank shall be conclusively presumed to
be done, or omitted to be done, by Xx. Xxxxxxxx in good faith and in the best
interests of the Company or the Bank. The cessation of employment by Xx.
Xxxxxxxx shall not be deemed to be for "cause" within the meaning of Section
12(a)(i) unless and until there shall have been delivered to Xx. Xxxxxxxx a copy
of a resolution duly adopted by the affirmative vote of three-fourths of the
non-employee members of the Boards at a meeting of the Boards called and held
for such purpose (after reasonable notice is provided to Xx. Xxxxxxxx and Xx.
Xxxxxxxx is given an opportunity, together with counsel, to be heard before the
Boards), finding that, in the good faith opinion of the Boards, Xx. Xxxxxxxx is
guilty of the conduct described in Section 12(a)(i) above, and specifying the
particulars thereof in detail.
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Section 13. Termination Upon or Following a Change of Control
(a) A change of control of the Company or the Bank ("Change of
Control") shall be deemed to have occurred upon the happening of any of the
following events:
(i) approval by the stockholders of the Company or the Bank of a
transaction that would result in the reorganization, merger or consolidation of
the Company or the Bank, respectively, 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 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 or the Bank; 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 or the
Bank;
(ii) the acquisition of all or substantially all of the assets of the
Company or the Bank or beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of the outstanding securities
of the Company or the Bank entitled to vote generally in the election of
directors by any person or by any persons acting in concert, or approval by the
stockholders of the Company or the Bank of any transaction which would result in
such an acquisition;
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(iii) a complete liquidation or dissolution of the Company or the Bank,
or approval by the stockholders of the Company or the Bank of a plan for such
liquidation or dissolution;
(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 or the Bank
do not belong to any of the following groups:
(A) individuals who were members of the board of directors of the
Company or the Bank on the date of this Agreement; or
(B) individuals who first became members of the board of directors
of the Company or the Bank after the date of this Agreement either:
(I) upon election to serve as a member of the board of directors
of the Company or the Bank by affirmative vote of three-quarters of the members
of such board, in office at the time of such first election; or
(II) upon election by the stockholders to serve as a member of the
board of directors of the Company or the Bank, but only if nominated for
election by affirmative vote of three-quarters of the members of the board of
directors of the Company or the Bank, 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 the Company or the Bank.
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 a
subsidiary of either of them, or by any employee benefit plan maintained by any
of them. For purposes of this Section 13(a), the term "person" shall have the
meaning assigned to it under Sections 13(d)(3) or 14(d)(2) of the Exchange Act.
(b) In the event of a Change of Control, Xx. Xxxxxxxx shall be entitled
to the payments and benefits contemplated by Section 11(b), provided, however,
that with respect to any such benefits or payments to be made thereunder, the
benefits or payments contemplated by Section 11(b) will be calculated as if the
remaining Unexpired Employment Period and the salary multiple in Section
11(b)(iv) are each equal to three years in the event of his termination of
employment with the Company or the Bank under any of the circumstances described
in Section 11(a) of this Agreement or under any of the following circumstances:
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(i) resignation, voluntary or otherwise, by Xx. Xxxxxxxx at any time
during the Employment Period following his demotion, loss of title, office or
significant authority or responsibility, or following any reduction in any
element of his package of compensation and benefits;
(ii) resignation, voluntary or otherwise, by Xx. Xxxxxxxx at any time
during the Employment Period following any relocation of his principal place of
employment or any change in working conditions at such principal place of
employment which Xx. Xxxxxxxx, in his reasonable discretion, determines to be
embarrassing, derogatory or otherwise adverse;
(iii) resignation, voluntary or otherwise, by Xx. Xxxxxxxx at any time
during the Employment Period following the failure of any successor to the
Company or the Bank in the Change of Control to include Xx. Xxxxxxxx in any
compensation or benefit program maintained by it or covering any of its
executive officers, unless Xx. Xxxxxxxx is already covered by a substantially
similar plan of the Company which is at least as favorable to him; or
(iv) resignation, voluntary or otherwise, for any other reason
whatsoever following the effective date of the Change of Control.
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Section 14. Tax Indemnification
(a) If Xx. Xxxxxxxx'x employment terminates under circumstances
entitling him (or in the event of his death, his estate) to the payments or
benefits under Section 11(b), the Company or the Bank shall pay to Xx. Xxxxxxxx
(or in the event of his death, his estate) an additional amount intended to
indemnify him against the financial effects of the excise tax imposed on excess
parachute payments under section 280G and 4999 of the Code (the "Tax Indemnity
Payment"). The Tax Indemnity Payment shall be determined under the following
formula:
X = E x X
0 - [(XX x (0 - XXX)) + SLI + E + M]
where
E = the rate at which the excise tax is assessed under Section 4999 of
the Code;
P = the amount with respect to which such excise tax is assessed,
determined without regard to this Section 14;
FI = the highest marginal rate of income tax applicable to Xx. Xxxxxxxx
under the Code for the taxable year in question;
SLI = the sum of the highest marginal rates of income tax applicable to
Xx. Xxxxxxxx under all applicable state and local laws for the
taxable year in question; an
M = the highest marginal rate of Medicare tax applicable to Xx.
Xxxxxxxx under the Code for the taxable year in question.
Such computation shall be made at the expense of the Company or the Bank by an
attorney or a firm of independent certified public accountants selected by Xx.
Xxxxxxxx and reasonably satisfactory to the Company (the "Tax Advisor") and
shall be based on the following assumptions: (i) that a change in ownership, a
change in effective ownership or control, or a change in the ownership of a
substantial portion of the assets, of the Bank or the Company has occurred
within the meaning of section 280G of the Code (a "280G Change of Control");
(ii) that all direct or indirect payments made to or benefits conferred upon Xx.
Xxxxxxxx on account of his termination of employment are "parachute payments"
within the meaning of section 280G of the Code; and (iii) that no portion of
such payments is reasonable compensation for services rendered prior to Xx.
Xxxxxxxx'x termination of employment.
Page 15
(b) With respect to any payment that is presumed to be a parachute
payment for purposes of section 280G of the Code, the Tax Indemnity Payment
shall be made to Xx. Xxxxxxxx on the earlier of the date the Company, the Bank
or any direct or indirect subsidiary or affiliate of the Company or the Bank is
required to withhold such tax or the date the tax is required to be paid by Xx.
Xxxxxxxx, unless, prior to such date, the Company or the Bank delivers to Xx.
Xxxxxxxx the written opinion, in form and substance reasonably satisfactory to
him, of the Tax Advisor or of an attorney or firm of independent certified
public accountants selected by the Company or the Bank and reasonably
satisfactory to Xx. Xxxxxxxx, to the effect that Xx. Xxxxxxxx has a reasonable
basis on which to conclude that (i) no 280G Change in Control has occurred, or
(ii) all or part of the payment or benefit in question is not a parachute
payment for purposes of section 280G of the Code, or (iii) all or a part of such
payment or benefit constitutes reasonable compensation for services rendered
prior to the 280G Change of Control, or (iv) for some other reason which shall
be set forth in detail in such letter, no excise tax is due under section 4999
of the Code with respect to such payment or benefit (the "Opinion Letter"). If
the Company or the Bank delivers an Opinion Letter, the Tax Advisor shall
recompute, and the Company or the Bank shall make, the Tax Indemnity Payment in
reliance on the information contained in the Opinion Letter.
(c) In the event that Xx. Xxxxxxxx'x liability for the excise tax under
section 4999 of the Code for a taxable year is subsequently determined to be
different than the amount with respect to which the Tax Indemnity Payment is
made, Xx. Xxxxxxxx or the Company or the Bank, as the case may be, shall pay to
the other party at the time that the amount of such excise tax is finally
determined, an appropriate amount, plus interest, such that the payment made
under section 16(b), when increased by the amount of the payment made by the
Company or the Bank under this section 16(c) or decreased by the amount of the
payment made by Xx. Xxxxxxxx under this section 16(c), equals the amount that
should have properly been paid to Xx. Xxxxxxxx under section 16(a). The interest
paid to the Company under this section 16(c) shall be determined at the rate
provided under section 1274(b)(2)(B) of the Code. The payment made to Xx.
Xxxxxxxx shall include such amount of interest as is necessary to satisfy any
interest assessment made by the Internal Revenue Service and an additional
amount equal to any monetary penalties assessed by the Internal Revenue Service
on account of an underpayment of the excise tax. To confirm that the proper
amount, if any, was paid to Xx. Xxxxxxxx under this section 16, Xx. Xxxxxxxx
shall furnish to the Company or the Bank a copy of each tax return which
reflects a liability for an excise tax, at least 20 days before the date on
which such return is required to be filed with the Internal Revenue Service.
Nothing in this Agreement shall give the Company or the Bank any right to
control or otherwise participate in any action, suit or proceeding to which Xx.
Xxxxxxxx is a party as a result of positions taken on his federal income tax
return with respect to his liability for excise taxes under section 4999 of the
Code.
Section 15. Confidentiality
Unless he obtains the prior written consent of the Company or the Bank,
Xx. Xxxxxxxx shall keep confidential and shall refrain from using for the
benefit of himself, or any person or entity other than the Company or the Bank
or any entity which is a subsidiary of the Company or the Bank or of which the
Company is a subsidiary, any material document or information obtained from the
Company or the Bank, or from its parent or subsidiaries, in the course of his
employment with any of them concerning their properties, operations or business
(unless such document or information is readily ascertainable from public or
published information or trade sources or has otherwise been made available to
the public through no fault of his own) until the same ceases to be material (or
becomes so ascertainable or available); provided, however, that nothing in this
Section 15 shall prevent Xx. Xxxxxxxx, with or without the Company's or Bank's
consent, from participating in or disclosing documents or information in
connection with any judicial or administrative investigation, inquiry or
proceeding to the extent that such participation or disclosure is required under
applicable law.
Page 16
Section 16. No Effect on Employee Benefit Plans or Programs
The termination of Xx. Xxxxxxxx'x employment during the term of this
Agreement or thereafter, whether by the Company or the Bank or by Xx. Xxxxxxxx,
shall have no effect on the rights and obligations of the parties hereto under
the Company's or 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 Company or the Bank from time to time.
Section 17. Successors and Assigns
This Agreement will inure to the benefit of and be binding upon Xx.
Xxxxxxxx, his legal representatives and testate or intestate distributees, and
the Company and the Bank, and its 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 and the Bank to obtain from any successor its express
written assumption of the Company's and the Bank's obligations hereunder at
least sixty (60) days in advance of the scheduled effective date of any such
succession shall be deemed a material breach of this Agreement.
Section 18. 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 (5) 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:
Page 17
If to Xx. Xxxxxxxx:
Xx. Xxxxxx X. Xxxxxxxx
00 Xxxxxx Xxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
If to the Company or the Bank:
U.S.B. Holding Co., Inc.
Union State Bank
000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Corporate Secretary
Section 19. 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 20. 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 21. Counterparts
This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same Agreement.
Section 22. Governing Law
This Agreement shall be governed by and construed and enforced in
accordance with the federal laws of the United States and, to the extent that
federal law is inapplicable, in accordance with the laws of the State of New
York applicable to contracts entered into and to be performed entirely within
the State of New York.
Section 23. Headings and Construction
The headings of sections in this Agreement are for the 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.
Section 24. 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.
Page 18
Section 25. Non-duplication
In the event that Xx. Xxxxxxxx performs services for the Company, the
Bank or an other direct or indirect subsidiary of the Company or the Bank, any
compensation or benefits provided to Xx. Xxxxxxxx by such other employer shall
be applied to offset the obligations of the Company and the Bank hereunder, it
being intended that this Agreement set forth the aggregate compensation and
benefits payable to Xx. Xxxxxxxx for all services to the Company, the Bank, and
all of its direct or indirect subsidiaries.
In Witness Whereof, the Company and the Bank have caused this Agreement
to be executed by their duly authorized officers and Xx. Xxxxxxxx has hereunto
set his hand, all as of the day and year first above written.
XXXXXX X. XXXXXXXX
ATTEST: U.S.B. HOLDING CO., INC.
By By
Assistant Secretary Name: Xxxxxx X. Xxxxx
Title: Chairman, President & C.E.O.
UNION STATE BANK
By By
Assistant Secretary Name: Xxxxxx X. Xxxxx
Title: Chairman, President & C.E.O.
Page 19
