BCB BANCORP, INC.
CHANGE IN CONTROL AGREEMENT
FOR
XXXXXX X. XXXXXXXX
This AGREEMENT is made effective as of December 10, 2008 by and between BCB
BANCORP, INC., (the "Company"), and XXXXXX X. XXXXXXXX (the "Executive"). Any
reference to "Bank" herein shall mean BAYONNE COMMUNITY BANK, a New Jersey
commercial bank or any successor thereto.
WHEREAS, the Company and the Bank recognize the substantial contribution
the Executive has made to the Company and the Bank and the Company and the Bank
wish to protect his position therewith for the period provided in this
Agreement; and
WHEREAS, the Executive has been elected to, and has agreed to serve in the
position of Chief Operating Officer and Chief Financial Officer for the Company
and in the position of Chief Operating Officer and Chief Financial Officer for
the Bank, which are positions of substantial responsibility;
NOW, THEREFORE, in consideration of the contribution of the Executive, and
upon the other terms and conditions hereinafter provided, the parties hereto
agree as follows:
1. TERM OF AGREEMENT
The "term" of this Agreement shall be thirty-six (36) full calendar months
from the effective date of this Agreement set forth above, and shall include any
extension or renewal made pursuant to this Section. Commencing on December 1,
2009 and continuing on the 1st of December of each year thereafter (the
"Anniversary Date"), this Agreement shall renew for an additional year such that
the remaining term shall be three (3) years unless written notice of non-renewal
("Non-Renewal Notice") is provided to Executive at least thirty (30) days and
not more than sixty (60) days prior to any such Anniversary Date, that this
Agreement shall terminate at the end of thirty-six (36) months following such
Anniversary Date.
2. CHANGE IN CONTROL
This Agreement provides for certain payments and benefits to Executive only
in the event of Change in Control.
A "Change in Control" shall mean (i) a change in the ownership of the
Company or Bank, (ii) a change in the effective control of the Company or Bank,
or (iii) a change in the ownership of a substantial portion of the assets of the
Company or Bank, as described below.
(a) A change in the ownership of a corporation occurs on the date that
any one person, or more than one person acting as a group (as defined in
Treasury Regulations section 1.409A-3(i)(5)(v)(B)), acquires ownership of stock
of the Company or Bank that, together with stock held by such person or group,
constitutes more than 50 percent of the total fair market value or total voting
power of the stock of such corporation. For these purposes, a change in
ownership will not be deemed to have occurred if no stock of the Company or Bank
is outstanding.
(b) A change in the effective control of the Company or Bank occurs on
the date that either (i) any one person, or more than one person acting as a
group (as defined in Treasury Regulations section 1.409A-3(i)(5)(vi)(D))
acquires (or has acquired during the 12-month period ending on the date of the
most recent acquisition by such person or persons) ownership of stock of the
Company or Bank possessing 30 percent or more of the total voting power of the
stock of the Company or Bank, or (ii) a majority of the members of the Company's
or Bank's board of directors is replaced during any 12-month period by directors
whose appointment or election is not endorsed by a majority of the members of
the Company's or Bank's board of directors prior to the date of the appointment
or election, provided that this subsection "(ii)" is inapplicable where a
majority shareholder of the Company or Bank is another corporation.
(c) A change in a substantial portion of the Company's or Bank's
assets occurs on the date that any one person or more than one person acting as
a group (as defined in Treasury Regulations section 1.409A-3(i)(5)(vii)(C))
acquires (or has acquired during the 12-month period ending on the date of the
most recent acquisition by such person or persons) assets from the Company or
Bank that have a total gross fair market value equal to or more than 40 percent
of the total gross fair market value of (i) all of the assets of the Company or
Bank, or (ii) the value of the assets being disposed of, either of which is
determined without regard to any liabilities associated with such assets. For
all purposes hereunder, the definition of Change in Control shall be construed
to be consistent with the requirements of Treasury Regulations section
1.409A-3(i)(5), except to the extent that such regulations are superseded by
subsequent guidance.
3. PAYMENTS TO EXECUTIVE UPON CHANGE IN CONTROL
(a) Upon the occurrence of a Change in Control (and even if the
Executive's employment will not terminate as a result of such Change in
Control), the Company or the Bank shall pay the Executive (or in the event of
his subsequent death, his estate), a cash lump sum equal to 2.999 of the
Executive's "base amount" as calculated under Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code") (or any successor thereto);
provided, however, that such amounts shall be subject to applicable withholding
taxes. Such payment shall be made on the effective date of the Change in Control
or within ten (10) business days thereafter. "Base amount" generally means the
Executive's average annual compensation for services performed for the Company
and the Bank which was includible in the Executive's gross income for the most
recent five (5) taxable years ending before the date of the Change in Control.
(b) Upon the occurrence of a Change in Control, the Executive will
have such rights as specified in any other employee benefit plan (including, but
not limited to, equity compensation plans).
(c) Notwithstanding the preceding paragraphs of this Section 3, in no
event shall the aggregate payments or benefits to be made or afforded to the
Executive (the "Change in Control Benefits") constitute an "excess parachute
payment" under Code Section 280G, and in order to avoid such a result, Change in
Control Benefits will be reduced, if necessary, to an amount (the
"Non-Triggering Amount"), the value of which is one dollar ($1.00) less than an
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amount equal to three (3) times the Executive's "base amount," as determined in
accordance with Code Section 280G. The allocation of the reduction required
hereby among Change in Control Benefits provided by the preceding paragraphs of
this Section 3 shall be determined by the Executive.
(d) Upon the occurrence of a Change in Control, the acquirer shall be
obligated to provide non-taxable health insurance coverage to the Executive and
his dependents, at no cost to the Executive, for a period of thirty-six (36)
months from the date of the Change in Control at a level comparable to the
health benefits provided to the Executive and his dependents by the Company
and/or the Bank immediately prior to the Change in Control. Such health
insurance benefits shall not be subject to the reduction described in Section
3(c).
4. SOURCE OF PAYMENTS
It is intended by the parties hereto that all payments provided in this
Agreement shall be paid in cash or check from the general funds of the Company
or the Bank, provided, however, that in the event that the payment of any
amounts due under Section 3 above is made by the Bank, such payment shall offset
the payment due from the Company hereunder.
5. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior agreement between the Company, the Bank and the
Executive, except that this Agreement shall not affect or operate to reduce any
benefit or compensation inuring to the Executive of a kind elsewhere provided.
No provision of this Agreement shall be interpreted to mean that the Executive
is subject to receiving fewer benefits than those available to him without
reference to this Agreement.
6. NO ATTACHMENT
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
the Executive, the Company, the Bank and their respective successors and
assigns.
7. MODIFICATION AND WAIVER
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall
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operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
8. REQUIRED PROVISIONS
Notwithstanding anything herein contained to the contrary, any payments to
Executive by the Company or the Bank, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with Section
18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and the
regulations promulgated thereunder in 12 C.F.R. Part 359.
9. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
10. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
11. GOVERNING LAW
(a) The validity, interpretation, performance, and enforcement of this
Agreement shall be governed by the laws of the State of New Jersey.
(b) Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by the employee within
fifty (50) miles from the location of the Company, in accordance with the rules
of the Judicial Mediation and Arbitration Systems (JAMS) then in effect.
Judgment may be entered on the arbitrator's award in any court having
jurisdiction.
12. PAYMENT OF LEGAL FEES
All reasonable legal fees paid or incurred by the Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Company or the Bank if the Executive is successful on the
merits pursuant to a legal judgment, arbitration or settlement. Such
reimbursement shall occur no later than sixty (60) days after the end of the
year in which the dispute is resolved in Executive's favor.
13. SUCCESSOR TO THE COMPANY OR BANK
The Company and the Bank shall require any successor or assignee, whether
direct or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Company or the Bank, expressly
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and unconditionally to assume and agree to perform the Company's or the Bank's
obligations under this Agreement, in the same manner and to the same extent that
the Company or the Bank would be required to perform if no such succession or
assignment had taken place.
14. SIGNATURES
IN WITNESS WHEREOF, the Company and the Bank have caused this Agreement to
be executed by its duly authorized officers, and the Executive has signed this
Agreement, on the day and date first above written.
BCB BANCORP, INC.
By: /s/ Xxxx X. Xxxxx
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BCB COMMUNITY BANK
By: /s/ Xxxx X. Xxxxx
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EXECUTIVE
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Chief Operating Officer
