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Exhibit 10(ii)
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT (as modified, extended or
supplemented from time to time, this "Agreement") is entered into as of the ___
day of ____, 1998 by and between Sterling Bancorp, a New York corporation (the
"Company"), and ("Executive").
W I T N E S S E T H
WHEREAS, the Company considers the establishment and maintenance of
a sound and vital management to be essential to protecting and enhancing the
best interests of the Company and its shareholders;
WHEREAS, the Company recognizes that, as is the case with many
publicly held corporations, the possibility of a change in control may arise and
that such possibility may result in the departure or distraction of management
personnel to the detriment of the Company and its shareholders;
WHEREAS, the Board (as defined in Section 1 of Appendix A) has
determined that it is in the best interests of the Company and its shareholders
to secure Executive's continued services and to ensure Executive's continued
dedication to his duties in the event of any threat or occurrence of a Change in
Control (as defined in Section 4 of Appendix A) of the Company; and
WHEREAS, the Board has authorized the Company to enter into this
Agreement:
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants and agreements herein contained, the Company and Executive
hereby agree as follows:
1. Definitions. As used in this Agreement, capitalized terms will
have the respective meanings set forth in Appendix A.
2. Obligation of Executive. In the event of a tender or exchange
offer, proxy contest, or the execution of any agreement which, if consummated,
would constitute a Change in Control, Executive agrees not to voluntarily leave
the employ of the Company, other than as a result of Disability, retirement or
an event which would constitute Good Reason if a Change in Control had occurred,
until the Change in Control occurs or, if earlier, such tender or exchange
offer, proxy contest, or agreement is terminated or abandoned.
3. Term of Agreement. (a) Subject to Section 3(b), this Agreement
shall be effective on the date hereof and shall continue in effect until the
Company shall have given three (3) years written notice of cancellation;
provided, that, notwithstanding the delivery of any such notice, this Agreement
shall continue in effect for a period of two (2) years after a Change in
Control, if such Change in Control shall have occurred during the term of this
Agreement.
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Exhibit 10(ii)
(b) Notwithstanding Section 3(a), this Agreement shall terminate if
Executive or the Company terminates Executive's employment prior to a Change in
Control; provided that, if (1) Executive's employment is terminated prior to a
Change in Control for reasons that would have constituted a Qualifying
Termination if they had occurred following a Change in Control; (2) Executive
reasonably demonstrates (or the Company agrees) that such termination (or Good
Reason event) was at the request of a third party who had indicated an intention
or taken steps reasonably calculated to effect a Change in Control; and (3) a
Change in Control involving such third party (or a party competing with such
third party to effectuate a Change in Control) does occur, then (A) for purposes
of this Agreement, the date immediately prior to the date of such termination of
employment or event constituting Good Reason shall be treated as a Change in
Control and (B) for purposes of determining the timing of payments and benefits
to Executive under Section 4, the date of the actual Change in Control shall be
treated as Executive's Date of Termination.
4. Payments Upon Termination of Employment. (a) If during the
Termination Period the employment of Executive shall terminate pursuant to a
Qualifying Termination, then the Company shall provide to Executive:
(1) Within ten (10) days following the Date of Termination a
lump-sum cash amount equal to the sum of (A) Executive's base salary
through the Date of Termination and any bonus amounts which have become
payable, to the extent not theretofore paid or deferred, (B) a pro rata
portion of Executive's annual bonus for the fiscal year in which
Executive's Date of Termination occurs in an amount at least equal to (i)
Executive's Bonus Amount, multiplied by (ii) a fraction, the numerator of
which is the number of days in the fiscal year in which the Date of
Termination occurs through the Date of Termination and the denominator of
which is three hundred sixty-five (365), and reduced by (iii) any amounts
paid from the Company's annual incentive plan for the fiscal year in which
Executive's Date of Termination occurs; plus
(2) Within ten (10) days following the Date of Termination, a
lump-sum cash amount equal to (A) two (2) times Executive's highest annual
rate of base salary during the 12-month period immediately prior to
Executive's Date of Termination, plus (B) two (2) times Executive's Bonus
Amount.
(b) If during the Termination Period the employment of Executive
shall terminate pursuant to a Qualifying Termination, the Company shall continue
to provide, for a period of two (2) years following Executive's Date of
Termination, Executive (and Executive's dependents, if applicable) with the same
level of medical, dental, accident, disability and life insurance benefits upon
substantially the same terms and conditions (including contributions required by
Executive for such benefits) as existed immediately prior to Executive's Date of
Termination (or, if more favorable to Executive, as such benefits and terms and
conditions existed immediately prior to the Change in Control); provided that,
if Executive cannot continue to participate in the Company plans providing such
benefits, the Company shall otherwise provide such benefits on the same
after-tax basis as if continued participation had been permitted.
Notwithstanding the foregoing, in the event Executive becomes reemployed with
another employer and becomes eligible to receive welfare benefits from such
employer,
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Exhibit 10(ii)
the welfare benefits described herein shall be secondary to such benefits during
the period of Executive's eligibility, but only to the extent that the Company
reimburses Executive for any increased cost and provides any additional benefits
necessary to give Executive the benefits provided hereunder.
(c) If during the Termination Period the employment of Executive
shall terminate pursuant to a Qualifying Termination, the Company shall (1) for
all purposes (including eligibility, vesting and benefit accrual) of each
pension, savings and retirement plan and program of the Company, treat Executive
as if (A) Executive had an additional two (2) years of service with the Company,
and (B) Executive's attained age were two (2) years older than Executive's
actual attained age as of his Date of Termination, and (B) pay to Executive,
within 30 days following his Date of Termination, a lump sum payment in an
amount equal to the sum of:
(i) The excess, if any, of (x) the present value of the benefits to
which Executive would be entitled under Company's pension and retirement
plans (qualified and nonqualified), if Executive had continued in the
employ of the Company for an additional two (2) years following his Date
of Termination earning during such two-year period the rate of base salary
and bonus in effect as of his Date of Termination, over (y) the present
value of the benefit to which Executive is actually entitled under such
pension and retirement plans as of his Date of Termination;
(ii) The present value of the Company contributions (including any
allocations of securities of the Company) that would have been made under
all Company savings programs (qualified and nonqualified), if Executive
had continued in the employ of the Company for an additional two (2) years
following his Date of Termination earning during such two-year period the
rate of base salary and bonus in effect as of his Date of Termination,
assuming that the Company would have made the maximum contributions
permitted under such savings programs, and assuming, for purposes of
determining the amount of any Company matching contributions, that
Executive would have contributed the amount necessary to receive the
maximum matching contributions available under such savings programs); and
(iii) If contributions to the Company's employee stock ownership
plan (the "ESOP") will continue after the Date of Termination, the value
of the allocations that would have been made to Executive under the ESOP,
if Executive had continued in the employ of the Company for an additional
two (2) years following his Date of Termination, determined by multiplying
(x) two (2) times the number of shares of stock of the Company (or, if
applicable, the Surviving Person or the Parent Corporation, as such terms
are defined below) allocated to the Executive's account under the ESOP for
the last full calendar year prior to the Date of Termination by (y) the
fair market value of one share of such stock on the Date of Termination.
For purposes of the preceding sentence, "present value" shall be determined as
of the Date of Termination and shall be calculated based upon a discount rate of
the base rate referred to in Section 7 and without reduction for mortality.
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Exhibit 10(ii)
(d) If during the Termination Period the employment of Executive
shall terminate other than by reason of a Qualifying Termination, then the
Company shall pay to Executive within thirty (30) days following the Date of
Termination, a lump-sum cash amount equal to the sum of (1) Executive's base
salary through the Date of Termination and any bonus amounts which have become
payable, to the extent not theretofore paid or deferred, and (2) and any accrued
vacation pay, in each case to the extent not theretofore paid. The Company may
make such additional payments, and provide such additional benefits, to
Executive as the Company and Executive may agree in writing.
5. Certain Additional Payments by the Company. (a) Anything in this
Agreement to the contrary notwithstanding, in the event it shall be determined
that any payment, award, benefit or distribution (or any acceleration of any
payment, award, benefit or distribution) by the Company (or any of its
affiliated entities) or any entity which effectuates a Change in Control (or any
of its affiliated entities) to or for the benefit of Executive (whether pursuant
to the terms of this Agreement or otherwise, but determined without regard to
any additional payments required under this Section 5) (the "Payments") would be
subject to the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended (the "Code"), or any interest or penalties are incurred by
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Company shall pay to Executive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by Executive of all
taxes (including any Excise Tax) imposed upon the Gross-Up Payment, Executive
retains an amount of the Gross-Up Payment equal to the sum of (1) the Excise Tax
imposed upon the Payments and (2) the product of any deductions disallowed
because of the inclusion of the Gross-up Payment in Executive's adjusted gross
income and the highest applicable marginal rate of federal income taxation for
the calendar year in which the Gross-up Payment is to be made. For purposes of
determining the amount of the Gross-up Payment, the Executive shall be deemed to
(1) pay federal income taxes at the highest marginal rates of federal income
taxation for the calendar year in which the Gross-up Payment is to be made, (2)
pay applicable state and local income taxes at the highest marginal rate of
taxation for the calendar year in which the Gross-up Payment is to be made, net
of the maximum reduction in federal income taxes which could be obtained from
deduction of such state and local taxes and (3) have otherwise allowable
deductions for federal income tax purposes at least equal to those which could
be disallowed because of the inclusion of the Gross-up Payment in the
Executive's adjusted gross income. Notwithstanding the foregoing provisions of
this Section 5(a), if it shall be determined that Executive is entitled to a
Gross-Up Payment, but that the Payments would not be subject to the Excise Tax
if the Payments were reduced by an amount that is less than 5% of the portion of
the Payments that would be treated as "parachute payments" under Section 280G of
the Code, then the amounts payable to Executive under this Agreement shall be
reduced (but not below zero) to the maximum amount that could be paid to
Executive without giving rise to the Excise Tax (the "Safe Harbor Cap"), and no
Gross-Up Payment shall be made to Executive. The reduction of the amounts
payable hereunder, if applicable, shall be made by reducing first the payments
under Section 4(a)(ii), unless an alternative method of reduction is elected by
Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only
amounts payable under this Agreement (and no other Payments) shall be reduced.
If the reduction of the amounts payable hereunder would not result in a
reduction of the Payments
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Exhibit 10(ii)
to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced
pursuant to this provision.
(b) Subject to the provisions of Section 5(a), all determinations
required to be made under this Section 5, including whether and when a Gross-Up
Payment is required, the amount of such Gross-Up Payment, the reduction of the
Payments to the Safe Harbor Cap and the assumptions to be utilized in arriving
at such determinations, shall be made by the public accounting firm that is
retained by the Company as of the date immediately prior to the Change in
Control (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and Executive within fifteen (15) business days
of the receipt of notice from the Company or the Executive that there has been a
Payment, or such earlier time as is requested by the Company (collectively, the
"Determination"). In the event that the Accounting Firm is serving as accountant
or auditor for the individual, entity or group effecting the Change in Control,
Executive may appoint another nationally recognized public accounting firm to
make the determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company and the Company shall enter
into any agreement requested by the Accounting Firm in connection with the
performance of the services hereunder. The Gross-up Payment under this Section 5
with respect to any Payments shall be made no later than thirty (30) days
following such Payment. If the Accounting Firm determines that no Excise Tax is
payable by Executive, it shall furnish Executive with a written opinion to such
effect, and to the effect that failure to report the Excise Tax, if any, on
Executive's applicable federal income tax return will not result in the
imposition of a negligence or similar penalty. In the event the Accounting Firm
determines that the Payments shall be reduced to the Safe Harbor Cap, it shall
furnish Executive with a written opinion to such effect. The Determination by
the Accounting Firm shall be binding upon the Company and Executive. As a result
of the uncertainty in the application of Section 4999 of the Code at the time of
the Determination, it is possible that Gross-Up Payments which will not have
been made by the Company should have been made ("Underpayment") or Gross-up
Payments are made by the Company which should not have been made
("Overpayment"), consistent with the calculations required to be made hereunder.
In the event that the Executive thereafter is required to make payment of any
Excise Tax or additional Excise Tax, the Accounting Firm shall determine the
amount of the Underpayment that has occurred and any such Underpayment (together
with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall
be promptly paid by the Company to or for the benefit of Executive. In the event
the amount of the Gross-up Payment exceeds the amount necessary to reimburse the
Executive for his Excise Tax, the Accounting Firm shall determine the amount of
the Overpayment that has been made and any such Overpayment (together with
interest at the rate provided in Section 1274(b)(2) of the Code) shall be
promptly paid by Executive (to the extent he has received a refund if the
applicable Excise Tax has been paid to the Internal Revenue Service) to or for
the benefit of the Company. Executive shall cooperate, to the extent his
expenses are reimbursed by the Company, with any reasonable requests by the
Company in connection with any contests or disputes with the Internal Revenue
Service in connection with the Excise Tax.
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Exhibit 10(ii)
6. Withholding Taxes. The Company may withhold from all payments due
to Executive (or his beneficiary or estate) hereunder all taxes which, by
applicable federal, state, local or other law, the Company is required to
withhold therefrom.
7. Reimbursement of Expenses. If any contest or dispute shall arise
under this Agreement involving termination of Executive's employment with the
Company or involving the failure or refusal of the Company to perform fully in
accordance with the terms hereof, the Company shall reimburse Executive, on a
current basis, for all reasonable legal fees and expenses, if any, incurred by
Executive in connection with such contest or dispute (regardless of the result
thereof), together with interest in an amount equal to the base rate of Sterling
National Bank (or any successor) from time to time in effect, but in no event
higher than the maximum legal rate permissible under applicable law, such
interest to accrue from the date the Company receives Executive's statement for
such fees and expenses through the date of payment thereof by the Company,
regardless of whether or not Executive's claim is upheld by a court of competent
jurisdiction/arbitration panel; provided, however, Executive shall be required
to repay any such amounts to the Company to the extent that a court/arbitration
panel issues a final and non-appealable order setting forth the determination
that the position taken by Executive was frivolous or advanced by Executive in
bad faith.
8. Scope of Agreement. Nothing in this Agreement shall be deemed to
entitle Executive to continued employment with the Company or its Subsidiaries,
and if Executive's employment with the Company shall terminate prior to a Change
in Control, Executive shall have no further rights under this Agreement (except
as otherwise provided hereunder); provided, however, that any termination of
Executive's employment during the Termination Period shall be subject to all of
the provisions of this Agreement.
9. Successors; Binding Agreement. (a) This Agreement shall not be
terminated by any reorganization, merger or consolidation involving the Company
(each, a "Business Combination"). In the event of any Business Combination, the
provisions of this Agreement shall be binding upon the Person resulting from
such Business Combination (the "Surviving Person"), and the Surviving Person
shall be treated as the Company hereunder.
(b) The Company agrees that in connection with any Business
Combination, it will cause any successor entity to the Company unconditionally
to assume (and, if applicable, the ultimate parent entity that directly or
indirectly has beneficial ownership of a majority of the voting securities
eligible to elect directors of the successor entity (the "Parent Corporation")
to guarantee), by written instrument delivered to Executive (or his beneficiary
or estate), all of the obligations of the Company hereunder. Failure of the
Company to obtain such assumption and guarantee prior to the effectiveness of
any such Business Combination that constitutes a Change in Control, shall be a
breach of this Agreement and shall constitute Good Reason hereunder and shall
entitle Executive to compensation and other benefits from the Company in the
same amount and on the same terms as Executive would be entitled hereunder if
Executive's employment were terminated following a Change in Control by reason
of a Qualifying Termination. For purposes of implementing the foregoing, the
date on which any such Business Combination becomes effective shall be deemed
the date Good Reason occurs, and shall be the Date of Termination if requested
by Executive.
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Exhibit 10(ii)
(c) This Agreement shall inure to the benefit of and be enforceable
by Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive shall die
while any amounts would be payable to Executive hereunder had Executive
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to such person or persons
appointed in writing by Executive to receive such amounts or, if no person is so
appointed, to Executive's estate.
10. Notice. (a) For purposes of this Agreement, all notices and
other communications required or permitted hereunder shall be in writing and
shall be deemed to have been duly given (1) on the date of delivery if delivered
personally or by telefacsimile upon confirmation of receipt, (2) on the first
business day following the date of dispatch if delivered by a recognized
next-day courier service or (3) five days after deposit in the United States
mail, certified and return receipt requested, postage prepaid. All such notices
and communications shall be delivered as set forth below:
If to the Executive:
If to the Company:
Sterling Bancorp
000 Xxxx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxx, X.X. 00000-0000
Attn: Chairman of the Board
with a copy addressed to the attention of the General
Counsel of the Company at the above address.
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(b) A written notice of Executive's Date of Termination by the
Company or Executive, as the case may be, to the other, shall (1) indicate the
specific termination provision in this Agreement relied upon, (2) to the extent
applicable, set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Executive's employment under the provision
so indicated and (3) specify the termination date (which date shall be not less
than fifteen (15) (thirty (30), if termination is by the Company for Disability)
nor more than sixty (60) days after the giving of such notice). The failure by
Executive or the Company to set forth in such notice any fact or circumstance
which contributes to a showing of Good Reason or Cause shall not waive any right
of Executive or the Company hereunder or preclude Executive or the Company from
asserting such fact or circumstance in enforcing Executive's or the Company's
rights hereunder.
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Exhibit 10(ii)
11. Full Settlement; Resolution of Disputes. In the event of a
Qualifying Termination, the Company's obligation to make any payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
be in lieu and in full settlement of all other severance payments to Executive
under any other severance or employment agreement between Executive and the
Company. The Company's obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right or action which
the Company may have against Executive or others. In no event shall Executive be
obligated to seek other employment or take other action by way of mitigation of
the amounts payable to Executive under any of the provisions of this Agreement
and, except as provided in Section 4(b), such amounts shall not be reduced
whether or not Executive obtains other employment.
12. Employment with Subsidiaries. Employment with the Company for
purposes of this Agreement shall include employment with any Subsidiary.
13. Survival. The respective obligations and benefits afforded to
the Company and Executive as provided in Sections 4 (to the extent that
payments or benefits are owed as a result of a termination of employment that
occurs during the term of this Agreement), 5 (to the extent that Payments are
made to Executive as a result of a Change in Control that occurs during the term
of this Agreement), 6, 7, 9(c) and 11 shall survive the termination of this
Agreement.
14. GOVERNING LAW; VALIDITY. THE INTERPRETATION, CONSTRUCTION AND
PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLE OF CONFLICTS OF LAWS. THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
ANY OTHER PROVISION OF THIS AGREEMENT, WHICH OTHER PROVISIONS SHALL REMAIN IN
FULL FORCE AND EFFECT.
15. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
16. Miscellaneous. No provision of this Agreement may be modified or
waived unless such modification or waiver is agreed to in writing and signed by
Executive and by a duly authorized officer of the Company. No waiver by either
party hereto at any time of any breach by the 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. Failure by Executive
or the Company to insist upon strict compliance with any provision of this
Agreement or to assert any right Executive or the Company may have hereunder,
including without limitation, the right of Executive to terminate employment for
Good Reason, shall not be deemed to be a waiver of such provision or right or
any other provision or right of this Agreement. Except as otherwise
specifically provided herein, the rights of, and benefits
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Exhibit 10(ii)
payable to, Executive, his estate or his beneficiaries pursuant to this
Agreement are in addition to any rights of, or benefits payable to, Executive,
his estate or his beneficiaries under any other employee benefit plan or
compensation program of the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by a duly authorized officer of the Company and Executive has executed
this Agreement as of the day and year first above written.
STERLING BANCORP
By:
---------------------------------
Name
Title:
------------------------------------
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Exhibit 10(ii)
Appendix A (Certain Defined Terms)
As used in the Agreement. the following terms shall have the
respective meanings set forth below:
1. "Board" means the Board of Directors of the Company
2. "Bonus Amount" means the highest annual bonus earned by Executive
from the Company (and/or its affiliates) during the last three (3) completed
fiscal years of the Company immediately preceding Executive's Date of
Termination (annualized in the event Executive was not employed by the Company
(or its affiliates) for the whole of any such fiscal year).
3. "Cause" means (a) the willful and continued failure of Executive
to perform substantially his duties with the Company (other than any such
failure resulting from Executive's incapacity due to physical or mental illness
or any such failure subsequent to Executive being delivered a Notice of
Termination without Cause by the Company or delivering a Notice of Termination
for Good Reason to the Company) after a written demand for substantial
performance is delivered to Executive by the Board which specifically identifies
the manner in which the Board believes that Executive has not substantially
performed Executive's duties, (b) the willful engaging by Executive in illegal
conduct or gross misconduct which is demonstrably and materially injurious to
the Company or its affiliates or (c) the final, non-appealable conviction of
Executive for a criminal violation of Title 12 or 18 of the United States Code.
For purpose of this definition, no act or failure to act by Executive shall be
considered "willful" unless done or omitted to be done by Executive in bad faith
and without reasonable belief that Executive's action or omission was in the
best interests of the Company or its affiliates. Any act, or failure to act,
(1) based upon authority given pursuant to a resolution duly adopted by the
Board, (2) based upon the advice of counsel for the Company or (3) based upon
the instructions of the Company's chief executive officer or another senior
officer of the Company shall be conclusively presumed to be done, or omitted to
be done, by Executive in good faith and in the best interests of the Company.
For purpose of clauses (a) and (b) of the first sentence of this definition,
"cause" shall not exist unless and until the Company has delivered to Executive
a copy of a resolution duly adopted by three-quarters (3/4) of the entire Board
(excluding Executive if Executive is a Board member) at a meeting of the Board
called and held for such purpose (after reasonable notice to Executive and an
opportunity for Executive, together with counsel, to be heard before the Board),
finding that in the good faith opinion of the Board an event set forth in
clauses (a) or (c) has occurred and specifying the particulars thereof in
detail. The Company must notify Executive of any event constituting Cause within
sixty (60) days following the Company's knowledge of its existence or such event
shall not constitute Cause under this Agreement.
4. "Change in Control" means the occurrence of any one of the
following events:
(a) The acquisition by any individual, entity or group (within the
meaning of section 13(d)(3) or 14(d)(1) of the Securities Exchange Act of
1934 (the "Exchange Act")) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of voting
securities which together with the beneficial ownership of voting
securities theretofore held comprises 20% or more of
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Exhibit 10(ii)
either (1) the then outstanding common shares of the Company (the "Outstanding
Company Common Shares") or (2) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however, that
the following acquisitions will not constitute a Change in Control: (1) any
acquisition directly from the Company (other than acquisition by virtue of the
exercise of a conversion privilege), (2) any acquisition by the Company, (3) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company or (4)
any acquisition by any corporation pursuant to a reorganization, merger or
consolidation, if, following such reorganization, merger or consolidation, the
conditions described in clauses (1), (2) and (3) of subsection (c) of this
definition are satisfied;
(b) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least two-thirds of the
Board, provided, however, that any individual becoming a director subsequent to
the date hereof whose election, or nomination for election by the shareholders
of the Company, was approved by a vote of at least two-thirds of the Directors
then comprising the Incumbent Board will be considered as though such individual
were a member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of either an
actual or threatened election contest (as such terms are used in Rule 14a-11 of
Regulations 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board;
(c) Approval by the shareholders of the Company of a reorganization,
merger or consolidation, in each case, unless, following such reorganization,
merger or consolidation, (1) more than 60% of, respectively, the then
outstanding shares of common stock of the corporation resulting from such
reorganization, merger or consolidation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of Directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the outstanding Company Common Shares
and Outstanding Company Voting Securities immediately prior to such
reorganization, merger or consolidation, in substantially the same proportions
as their ownership, immediately prior to such reorganization, merger or
consolidation, in substantially the same proportions as their ownership,
immediately prior to such reorganization, merger or consolidation, of the
Outstanding Company Common Shares and Outstanding Company Voting Securities, as
the case may be, (2) no Person (excluding the Company, any employee benefit plan
(or related trust) of the Company or such corporation resulting from such
reorganization, merger or consolidation) beneficially owns, directly or
indirectly, 10% or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then outstanding voting
securities of such corporation, entitled to vote generally in the election of
directors and (3) at least two-thirds of the members of the board of directors
of the corporation resulting from such reorganization, merger or consolidation
were
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Exhibit 10(ii)
members of the Incumbent Board at the time of the execution of the initial
agreement providing for such reorganization, merger or consolidation;
(d) Approval by the shareholders of the Company of (1) a complete
liquidation or dissolution of the Company or (2) the sale or other disposition
of all or substantially all of the assets or deposits of the Company, other than
to a corporation, with respect to which following such sale or other
disposition, (A) more than 60% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Shares and Outstanding
Company Voting Securities immediately prior to such sale or other disposition,
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be, (B) no Person (excluding the Company and any
employee benefit plan (or related trust) of the company or such corporation)
beneficially owns, directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors and (C) at least
two-thirds of the members of the board of directors of such corporation were
members of the Incumbent Board at the time of the execution of the initial
agreement or action of the Board providing for such sale or other disposition of
assets of the Company; or
(e) Reorganization, merger or consolidation of Sterling National Bank or
sale or other disposition of all or substantially all of the assets or deposits
of Sterling National Bank, unless, in the case of a reorganization, merger or
consolidation, the resulting entity is wholly owned by a corporation meeting the
following requirements or, in the case of a sale or disposition, the sale or
disposition is a to a corporation meeting the following requirements (in each
case after giving effect to the reorganization, merger, consolidation, sale or
disposition and any related transactions): (A) more than two-thirds of,
respectively, the then outstanding shares of common stock of such corporation
and the combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Shares and Outstanding Company Voting Securities
immediately prior to such reorganization, merger, consolidation, sale or
disposition, as the case may be, (B) no Person (excluding the Company and any
employee benefit plan (or related trust) of the Company or such corporation)
beneficially owns, directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors and (C) at least
two-thirds of the members of the board of directors of such corporation were
members of the Incumbent Board at the time of the execution of the initial
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Exhibit 10(ii)
agreement or action of the Board providing for such reorganization,
merger, consolidation, sale or disposition.
5. "Date of Termination" means (a) the effective date on which
Executive's employment by the Company terminates as specified in a prior written
notice by the Company or Executive, as the case may be, to the other, delivered
pursuant to Section 10 or (b) if Executive's employment by the Company
terminates by reason of death, the date of death of Executive.
6. "Disability" means termination of Executive's employment by the
Company due to Executive's absence from Executive's duties with the Company on a
full-time basis for at least one hundred eighty (180) consecutive days as a
result of Executive's incapacity due to physical or mental illness.
7. "Good Reason" means, without Executive's express written consent,
the occurrence of any of the following events after a Change in Control:
(a) (1) Any change in the duties or responsibilities (including
reporting responsibilities) of Executive that is inconsistent in any
material and adverse respect with Executive's position(s), duties,
responsibilities or status with the Company immediately prior to such
Change in Control (including any material and adverse diminution of such
duties or responsibilities) or (2) a material and adverse change in
Executive's titles or offices (including, if applicable, membership on the
Board) with the Company or its affiliates as in effect immediately prior
to such Change in Control;
(b) A reduction by the Company in Executive's rate of annual base
salary, annual bonus or annual bonus opportunity (including any material
and adverse change in the formula for such annual bonus or bonus
opportunity) as in effect immediately prior to such Change in Control or
as the same may be increased from time to time thereafter;
(c) Any requirement of the Company that Executive (1) be based
anywhere other than the Company's principal executive offices (or the
principal executive office of a subsidiary or division of the Company, if
Executive is based at such office immediately prior to such Change in
Control) or more than ten (10) miles from the office where Executive is
located at the time of the Change in Control or (2) travel on Company
business to an extent substantially greater than the travel obligations of
Executive immediately prior to such Change in Control;
(d) The failure of the Company to (1) continue in effect any
employee benefit plan, compensation plan, welfare benefit plan or material
fringe benefit plan in which Executive is participating immediately prior
to such Change in Control or the taking of any action by the Company which
would adversely affect Executive's participation in or reduce Executive's
benefits under any such plan, unless Executive is permitted to participate
in other plans providing Executive with substantially equivalent benefits
(at substantially equivalent cost with respect to welfare benefit plans),
or (2) provide
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Exhibit 10(ii)
Executive with paid vacation in accordance with the most favorable
vacation policies of the Company and its affiliated companies as in effect
for Executive immediately prior to such Change in Control, including the
crediting of all service for which Executive had been credited under such
vacation policies prior to the Change in Control;
(e) Any refusal by the Company to continue to permit Executive to
engage in activities not directly related to the business of the Company
which Executive was permitted to engage in prior to the Change in Control;
(f) Any purported termination of Executive's employment which is not
effectuated pursuant to Section 10(b) (and which will not constitute a
termination hereunder); or
(g) The failure of the Company to obtain the assumption (and, if
applicable, guarantee) agreement from any successor (and Parent
Corporation) as contemplated in Section 9(b).
Notwithstanding anything herein to the contrary, termination of employment by
Executive for any reason during the 30-day period commencing one (1) year after
the date of a Change in Control shall constitute Good Reason.
An isolated, insubstantial and inadvertent action taken in good faith and which
is remedied by the Company within ten (10) days after receipt of notice thereof
given by Executive shall not constitute Good Reason. Executive's right to
terminate employment for Good Reason shall not be affected by Executive's
incapacities due to mental or physical illness and Executive's continued
employment shall not constitute consent to, or a waiver of rights with respect
to, any event or condition constituting Good Reason.
8. "Qualifying Termination" means a termination of Executive's
employment (a) by the Company other than for Cause or (b) by Executive for Good
Reason. Termination of Executive's employment on account of death, Disability or
Retirement shall not be treated as a Qualifying Termination, unless such death
or Disability shall occur during the 30-day period referred to in the second
paragraph of the definition of "Good Reason" (in which case it will constitute a
Qualifying Termination).
9. "Retirement" means Executive's retirement (not including any
mandatory early retirement) in accordance with the Company's retirement policy
generally applicable to its salaried employees (if any), as in effect
immediately prior to the Change in Control, or in accordance with any retirement
arrangement established with respect to Executive with Executive's written
consent.
10. "Subsidiary" means any corporation or other entity in which the
Company has a direct or indirect ownership interest of 50% or more of the total
combined voting power of the then outstanding securities or interests of such
corporation or other entity entitled to vote generally in the election of
directors or in which the Company has the right to receive 50% or more of the
distribution of profits or 50% of the assets on liquidation or dissolution.
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Exhibit 10(ii)
11. "Termination Period" means the period of time beginning with a
Change in Control and ending two (2) years following such Change in Control.
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