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EXHIBIT 10.3
CHANGE IN CONTROL SEVERANCE AGREEMENT BETWEEN
INDEPENDENCE SAVINGS BANK AND _______________
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT is dated this ____ day of
_____ 1997, between Independence Savings Bank, a New York-chartered savings
bank (the "Bank" or the "Employer"), and _________ (the "Officer").
WITNESSETH
WHEREAS, the Officer is presently an officer of Employer;
WHEREAS, the Employer desires to be ensured of the Officer's continued
active participation in the business of the Employer; and
WHEREAS, in order to induce the Officer to remain in the employ of the
Employer and in consideration of the Officer's agreeing to remain in the employ
of the Employer, the parties desire to specify the severance benefits which
shall be due the Officer in the event that his employment with the Employer is
terminated under specified circumstances, including a change in control of
Independence Community Bank Corp., a Delaware corporation (the "Corporation"),
which is the holding company of the Bank;
NOW THEREFORE, in consideration of the mutual agreements herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. DEFINITIONS. The following words and terms shall have the meanings
set forth below for the purposes of this Agreement:
(a) ANNUAL COMPENSATION. The Officer's "Annual Compensation" for
purposes of this Agreement shall be deemed to mean the highest level of
aggregate base salary and cash incentive compensation paid to the Officer by
the Employer or any subsidiary thereof during the calendar year in which the
Date of Termination occurs (determined on an annualized basis) or either of the
two calendar years immediately preceding the calendar year in which the Date of
Termination occurs.
(b) CAUSE. Termination of the Officer's employment for "Cause" shall
mean termination 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. For purposes of this paragraph, no act or failure to
act on the Officer's part shall be considered "willful" unless done, or omitted
to be done, by the Officer
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not in good faith and without reasonable belief that the Officer's action or
omission was in the best interests of the Employer.
(c) CHANGE IN CONTROL OF THE CORPORATION. "Change in Control of the
Corporation" shall mean the occurrence of any of the following: (i) the
acquisition of control of the Corporation as defined in 12 C.F.R. Section 574.4,
unless a presumption of control is successfully rebutted or unless the
transaction is exempted by 12 C.F.R. Section 574.3(c)(vii), or any successor to
such sections; (ii) an event that would be required to be reported in response
to Item 1(a) of Form 8-K or Item 6(e) of Schedule 14A of Regulation 14A
pursuant to the Securities Exchange Act of 1934, as amended ("Exchange Act"),
or any successor thereto, whether or not any class of securities of the
Corporation is registered under the Exchange Act; (iii) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Corporation representing 20% or more of the
combined voting power of the Corporation's then outstanding securities; or (iv)
during any period of three consecutive years, individuals who at the beginning
of such period constitute the Board of Directors of the Corporation cease for
any reason to constitute at least a majority thereof unless the election, or
the nomination for election by stockholders, of each new director was approved
by a vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
(d) CODE. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(e) DATE OF TERMINATION. "Date of Termination" shall mean (i) if the
Officer's employment is terminated for Cause, the date on which the Notice of
Termination is given, and (ii) if the Officer's employment is terminated for
any other reason, the date specified in the Notice of Termination.
(f) DISABILITY. Termination by the Employer of the Officer's
employment based on "Disability" shall mean termination because of any physical
or mental impairment which qualifies the Officer for disability benefits under
the applicable long-term disability plan maintained by the Employer or any
subsidiary or, if no such plan applies, which would qualify the Officer for
disability benefits under the Federal Social Security System.
(g) GOOD REASON. Termination by the Officer of the Officer's
employment for "Good Reason" shall mean termination by the Officer following a
Change in Control of the Corporation based on:
(i) Without the Officer's express written consent, the
assignment by the Employer to the Officer of any
duties which are materially inconsistent with the
Officer's positions, duties, responsibilities and
status with the Employer immediately prior to a
Change in Control of the
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Corporation, or a material change in the Officer's
reporting responsibilities, titles or offices as an
employee and as in effect immediately prior to such
a Change in Control of the Corporation, or any
removal of the Officer from or any failure to
re-elect the Officer to any of such
responsibilities, titles or offices, except in
connection with the termination of the Officer's
employment for Cause, Disability or Retirement or as
a result of the Officer's death or by the Officer
other than for Good Reason;
(ii) Without the Officer's express written consent, a
reduction by either of the Employer in the Officer's
base salary as in effect immediately prior to the
date of the Change in Control of the Corporation or
as the same may be increased from time to time
thereafter or a reduction in the package of fringe
benefits provided to the Officer;
(iii) The principal executive office of the Employer is
relocated outside of the Brooklyn, New York area or,
without the Officer's express written consent,
Employer requires the Officer to be based anywhere
other than an area in which the Employer's principal
executive office is located, except for required
travel on business of the Employer to an extent
substantially consistent with the Officer's present
business travel obligations;
(iv) Any purported termination of the Officer's
employment for Cause, Disability or Retirement which
is not effected pursuant to a Notice of Termination
satisfying the requirements of paragraph (i) below;
or
(v) The failure by the Employer to obtain the assumption
of and agreement to perform this Agreement by any
successor as contemplated in Section 6 hereof.
(h) IRS. IRS shall mean the Internal Revenue Service.
(i) NOTICE OF TERMINATION. Any purported termination of the Officer's
employment by the Employer for any reason, including without limitation for
Cause, Disability or Retirement, or by the Officer for any reason, including
without limitation for Good Reason, shall be communicated by written "Notice of
Termination" to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth
in reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Officer's employment under the provision so indicated, (iii)
specifies a Date of Termination, which shall be not less than thirty (30) nor
more than ninety (90) days
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after such Notice of Termination is given, except in the case of the Employers'
termination of the Officer's employment for Cause, which shall be effective
immediately; and (iv) is given in the manner specified in Section 7 hereof.
(j) RETIREMENT. "Retirement" shall mean voluntary termination by the
Officer in accordance with the Employer's retirement policies, including early
retirement, generally applicable to their salaried employees.
2. BENEFITS UPON TERMINATION. If the Officer's employment by the
Employer shall be terminated subsequent to a Change in Control of the
Corporation by (i) the Employer for other than Cause, Disability, Retirement or
the Officer's death or (ii) the Officer for Good Reason, then the Employer
shall
(a) pay to the Officer, in either [TWELVE (12)/TWENTY-FOUR (24)] equal
monthly installments beginning with the first business day of the month
following the Date of Termination or in a lump sum as of the Date of
Termination (at the Officer's election), a cash severance amount equal to [ONE
(1)/TWO (2)] times the Officer's Annual Compensation; and
(b) maintain and provide for a period ending at the earlier of (i) the
expiration of the remaining term of this Agreement as of the Date of
Termination or (ii) the date of the Officer's full-time employment by another
employer (provided that the Officer is entitled under the terms of such
employment to benefits substantially similar to those described in this
subparagraph (b)), at no cost to the Officer, the Officer's continued
participation in all group insurance, life insurance, health and accident
insurance, disability insurance and other employee benefit plans, programs and
arrangements offered by the Employer in which the Officer was entitled to
participate immediately prior to the Date of Termination (excluding (y) stock
option and restricted stock plans of the Employer or the Corporation and (z)
cash incentive compensation included in Annual Compensation), provided that in
the event that the Officer's participation in any plan, program or arrangement
as provided in this subparagraph (b) is barred, or during such period any such
plan, program or arrangement is discontinued or the benefits thereunder are
materially reduced, the Employer shall arrange to provide the Officer with
benefits substantially similar to those which the Officer was entitled to
receive under such plans, programs and arrangements immediately prior to the
Date of Termination.
3. LIMITATION OF BENEFITS UNDER CERTAIN CIRCUMSTANCES. If the payments
and benefits pursuant to Section 2 hereof, either alone or together with other
payments and benefits which the Officer has the right to receive from the Bank,
would constitute a "parachute payment" under Section 280G of the Code, the
payments and benefits payable by the Bank pursuant to Section 2 hereof shall be
reduced, in the manner determined by the Officer, by the amount, if any, which
is the minimum necessary to result in no portion
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of the payments and benefits payable by the Bank under Section 2 being
non-deductible to the Bank pursuant to Section 280G of the Code and subject to
the excise tax imposed under Section 4999 of the Code. The parties hereto agree
that the present value of the payments and benefits payable pursuant to this
Agreement to the Officer upon termination shall be limited to three times the
Officer's Annual Compensation. The determination of any reduction in the
payments and benefits to be made pursuant to Section 2 shall be based upon the
opinion of independent counsel selected by the Bank's independent public
accountants and paid by the Bank. Such counsel shall be reasonably acceptable
to the Bank and the Officer; shall promptly prepare the foregoing opinion, but
in no event later than thirty (30) days from the Date of Termination; and may
use such actuaries as such counsel deems necessary or advisable for the
purpose. Nothing contained herein shall result in a reduction of any payments
or benefits to which the Officer may be entitled upon termination of employment
under any circumstances other than as specified in this Section 3, or a
reduction in the payments and benefits specified in Section 2 below zero.
4. MITIGATION; EXCLUSIVITY OF BENEFITS.
(a) The Officer shall not be required to mitigate the amount of any
benefits hereunder by seeking other employment or otherwise, nor shall the
amount of any such benefits be reduced by any compensation earned by the
Officer as a result of employment by another employer after the Date of
Termination or otherwise.
(b) The specific arrangements referred to herein are not intended to
exclude any other benefits which may be available to the Officer upon a
termination of employment with the Employer pursuant to employee benefit plans
of the Employer or otherwise.
5. WITHHOLDING. All payments required to be made by the Employer
hereunder to the Officer shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Employer may
reasonably determine should be withheld pursuant to any applicable law or
regulation.
6. ASSIGNABILITY. The Employer may assign this Agreement and their
rights and obligations hereunder in whole, but not in part, to any corporation,
bank or other entity with or into which the Employer or the Corporation may
hereafter merge or consolidate or to which the Employer or the Corporation may
transfer all or substantially all of its respective assets, if in any such case
said corporation, bank or other entity shall by operation of law or expressly
in writing assume all obligations of the Employer hereunder as fully as if it
had been originally made a party hereto, but may not otherwise assign this
Agreement or their rights and obligations hereunder. The Officer may not assign
or transfer this Agreement or any rights or obligations hereunder.
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7. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Bank: Secretary
Independence Savings Bank
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
To the Officer:
8. AMENDMENT; WAIVER. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Officer and such officer or officers as may be
specifically designated by the Board of Directors of the Employer to sign on
their behalf. No waiver by any party hereto at any time of any breach by any
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
9. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United
States where applicable and otherwise by the substantive laws of the State of
New York.
10. NATURE OF EMPLOYMENT AND OBLIGATIONS.
(a) Nothing contained herein shall be deemed to create other than a
terminable at will employment relationship between the Employer and the
Officer, and the Employer may terminate the Officer's employment at any time,
subject to providing any payments specified herein in accordance with the terms
hereof.
(b) Nothing contained herein shall create or require the Employer to
create a trust of any kind to fund any benefits which may be payable hereunder,
and to the extent that the Officer acquires a right to receive benefits from
the Employer hereunder, such right shall be no greater than the right of any
unsecured general creditor of the Employer.
11. TERM OF AGREEMENT. The term of this Agreement shall be for
[ONE/TWO YEARS,] commencing on the date of this Agreement and, upon approval of
the Board of Directors of the Employer, shall extend for an additional year on
each annual anniversary
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of the date of this Agreement such that at any time the remaining term of this
Agreement shall be [FROM ONE TO TWO YEARS] [ONE YEAR]. Prior to the first
annual anniversary of the date of this Agreement and each annual anniversary
thereafter, the Board of Directors of the Employer shall consider and review
(after taking into account all relevant factors, including the Officer's
performance) an extension of the term of this Agreement, and the term shall
continue to extend each year if the Board of Directors approves such extension
unless the Officer gives written notice to the Employer of the Officer's
election not to extend the term, with such written notice to be given not less
than thirty (30) days prior to any such anniversary date. If the Board of
Directors of the Employer elects not to extend the term, it shall give written
notice of such decision to the Officer not less than thirty (30) days prior to
any such anniversary date. If any party gives timely notice that the term will
not be extended as of any annual anniversary date, then this Agreement shall
terminate at the conclusion of its remaining term. References herein to the
term of this Agreement shall refer both to the initial term and successive
terms.
12. HEADINGS. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
13. VALIDITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
15. REGULATORY PROHIBITION. Notwithstanding any other provision of
this Agreement to the contrary, any payments made to the Officer pursuant to
this Agreement, or otherwise, are subject to and conditioned upon their
compliance with Section 18(k) of the Federal Deposit Insurance Act (12 U.S.C.
Section1828(k)) and the regulations promulgated thereunder, including 12 C.F.R.
Part 359.
16. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the Employer and the Officer with respect to the matters agreed to
herein. All prior agreements between the Employer and the Officer with respect
to the matters agreed to herein are hereby superseded and shall have no force
or effect.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
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Attest: INDEPENDENCE SAVINGS BANK
------------------------------------ By:
Xxxx X. Xxxxxxx, Senior Vice President -------------------------------
and Counsel , Director
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OFFICER
By:
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