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AMENDED AND RESTATED
LONG ISLAND COMMERCIAL BANK
CHANGE OF CONTROL AGREEMENT
THIS AGREEMENT is made this 31st day of March, 2005, by and between
LONG ISLAND COMMERCIAL BANK, a New York state-chartered commercial bank located
in Islandia, New York (the "Bank") and Xxxxxx Xxxxxxxxx (the "Executive").
AGREEMENT
WHEREAS, the Bank recognizes the continued importance of Executive to
the Bank's operations and wishes to protect his position with the Bank in the
event of a Change of Control (as defined in Section 1.2 of this Agreement); and
WHEREAS, Executive and the Board of Directors of the Bank desire to
enter into a restated agreement setting forth the terms and conditions of
payments due to Executive in the event of a Change of Control and the related
rights and obligations of each of the parties.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is hereby agreed as follows:
ARTICLE 1
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the meanings specified:
1.1 "BASE SALARY" means the total annual base salary payable to
the Executive at the rate in effect on the date Executive terminates employment
with the Bank. Base Salary shall not be reduced for any salary reduction
contributions: (i) to cash or deferred arrangements under Section 401(k) of the
Code; (ii) to a cafeteria plan under Section 125 of the Code; or (iii) to a
deferred compensation plan that is not qualified under Section 401(a) of the
Code.
1.2 "CHANGE OF CONTROL" means any of the following events:
i. Merger: The Company merges into or consolidates with
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another corporation, or merges another corporation
into the Company, and as a result less than a
majority of the combined voting power of the
resulting corporation immediately after the merger or
consolidation is held by persons who were
stockholders of the Company immediately before the
merger or consolidation; or
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ii. Acquisition of Significant Share Ownership: There
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is filed, or required to be filed, a report on
Schedule 13D or another form or schedule (other than
Schedule 13G) required under Sections 13(d) or 14(d)
of the Securities Exchange Act of 1934, if the
schedule discloses that the filing person or persons
acting in concert has or have become the beneficial
owner of 25% or more of a class of the Company's
voting securities, but this clause (ii) shall not
apply to beneficial ownership of Company voting
shares held in a fiduciary capacity by an entity of
which the Company directly or indirectly beneficially
owns 50% or more of its outstanding voting
securities; or
iii. Change in Board Composition: During any period
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of two consecutive years, individuals who constitute
the Company's Board of Directors at the beginning of
the two-year period cease for any reason to
constitute at least a majority of the Company's Board
of Directors; provided, however, that for purposes of
this clause (iii), each director who is first elected
by the board (or first nominated by the board for
election by the stockholders) by a vote of at least
two-thirds (2/3) of the directors who were directors
at the beginning of the two-year period shall be
deemed to have also been a director at the beginning
of such period; or
iv. Sale of Assets: The Company sells to a third party
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all or substantially all of its assets.
1.3 "CODE" means the Internal Revenue Code of 1986, as amended.
1.4 "COMPANY" means Long Island Financial Corp., a Delaware
corporation.
1.5 "TERMINATION FOR CAUSE" means the termination of the
Executive's employment by the Company for any of the following reasons:
(a) Gross negligence or gross neglect of duties;
(b) Commission of a felony or of a gross misdemeanor
involving moral turpitude; or
(c) Fraud, disloyalty, dishonesty or willful violation of
any law or significant Company policy committed in
connection with the Executive's employment and
resulting in an adverse effect on the Company.
ARTICLE 2
CHANGE OF CONTROL BENEFIT
2.1 CHANGE OF CONTROL BENEFIT. If a Change of Control has
occurred, Executive shall be entitled to the benefit provided in Section 2.1.1
of this Agreement following his voluntary or involuntary termination of
employment within twelve (12) months of the Change of Control (for reasons other
than death, disability, retirement or Termination for Cause).
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2.1.1 AMOUNT OF BENEFIT. Upon Executive's entitlement to a Change of
Control Benefit pursuant to Section 2.1 of this Agreement, the Bank shall make a
lump sum payment to Executive equal to TWO AND ONE HALF (2 1/2) times his Base
Salary, plus the benefit (if any) the Executive is entitled to receive under
Article 3 of this Agreement.
2.1.2 TIMING OF THE PAYMENT. The Change of Control Benefit provided
under this Article 2 shall be paid to Executive within five (5) business days of
the Change of Control.
ARTICLE 3
CHANGE OF CONTROL RELATED PROVISIONS
3.1 In each calendar year that Executive is entitled to receive
payments or benefits under the provisions of this Change of Control Agreement,
as well as any other payment in the nature of compensation made by the Company
and the Bank to (or for the benefit of) Executive, the Bank or the Company shall
determine if an excess parachute payment (as defined in Section 4999 of the
Code, and any successor provision thereto) exists. Such determination shall be
made after taking any reductions permitted pursuant to Section 280G of the Code
and the regulations thereunder. Any amount determined to be an excess parachute
payment after taking into account such reductions shall be hereafter referred to
as the "Initial Excess Parachute Payment." As soon as practicable after a Change
of Control, the Initial Excess Parachute Payment shall be determined. Within
five (5) days of Executive's termination of employment following a Change of
Control, the Bank shall pay Executive, subject to applicable withholding
requirements under applicable state or federal law, an amount equal to:
3.1.1 twenty (20) percent of the Initial Excess Parachute Payment
(or such other amount equal to the tax imposed under Section 4999 of the Code);
and
3.1.2 such additional amount (tax allowance) as may be necessary to
compensate Executive for the payment by Executive of federal and state income
taxes, federal employment taxes, adjusted gross income phase out of itemized
deductions and excise taxes on the payment provided under Section 3.1.1 and on
any payments under this Section 3.1.2. In computing such tax allowance, the
payment to be made under Section 3.1.1 shall be multiplied by the "gross up
percentage" ("GUP"). The GUP shall be determined as follows:
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GUP = __________
1- Tax Rate
The "Tax Rate" for purposes of computing the GUP shall be the sum of
the highest marginal federal and state income and employment-related tax rates,
including any applicable excise tax rates, applicable to Executive in the year
in which the payment under Section 3.1.1 is made.
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3.2 Notwithstanding the foregoing, if it shall subsequently be
determined in a final judicial determination or a final administrative
settlement to which Executive is a party, that the excess parachute payment as
defined in Section 4999 of the Code, reduced as described above, is more than
the Initial Excess Parachute Payment (such different amount being hereafter
referred to as the "Determinative Excess Parachute Payment") then the Bank's or
the Company's independent accountants shall determine the amount (the
"Adjustment Amount") the Bank must pay to Executive in order to put Executive in
the same position as Executive would have been if the Initial Excess Parachute
Payment had been equal to the Determinative Excess Parachute Payment. In
determining the Adjustment Amount, independent accountants of the Bank or the
Company shall take into account any and all taxes (including any penalties and
interest) paid by or for Executive or refunded to Executive or for Executive's
benefit. As soon as practicable after the Adjustment Amount has been so
determined, the Bank shall pay the Adjustment Amount to Executive. In no event,
however, shall Executive make any payment under this paragraph to the Bank.
ARTICLE 4
MISCELLANEOUS
4.1 BINDING EFFECT. This Agreement shall bind the Executive and
the Bank, and their beneficiaries, survivors, executors, successors,
administrators and transferees.
4.2 NO GUARANTEE OF EMPLOYMENT. This Agreement is not an
employment policy or contract. It does not give the Executive the right to
remain an employee of the Bank or the Company, nor does it interfere with the
right of the Bank or the Company to discharge the Executive. It also does not
require the Executive to remain an employee nor interfere with the Executive's
right to terminate employment at any time.
4.3 NON-TRANSFERABILITY. Benefits under this Agreement cannot be
sold, transferred, assigned, pledged, attached or encumbered in any manner.
4.4 TAX WITHHOLDING. The Bank shall withhold any taxes that are
required to be withheld from the benefits provided under this Agreement.
4.5 APPLICABLE LAW. The Agreement and all rights hereunder shall
be governed by the laws of the State of New York, except to the extent preempted
by the laws of the United States of America.
4.6 UNFUNDED ARRANGEMENT. The Executive is a general unsecured
creditor of the Bank for the payment of benefits under this Agreement. The
benefits represent the mere promise by the Bank to pay such benefits. The rights
to benefits are not subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance, attachment, or garnishment by
creditors.
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4.7 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the Bank and the Executive as to the subject matter hereof. No
rights are granted to the Executive by virtue of this Agreement other than those
specifically set forth herein.
4.8 ADMINISTRATION. The Bank shall have powers which are necessary
to administer this Agreement, including but not limited to establishing rules
and prescribing any forms necessary or desirable to administer this Agreement.
4.9 MODIFICATION AND WAIVER. This Agreement may not be modified or
amended except by an instrument in writing signed by the parties hereto. 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 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.
4.10 ARBITRATION/PAYMENT OF LEGAL FEES. 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 Executive within fifty (50) miles from the location of the
Bank, in accordance with the rules of the American Arbitration Association then
in effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that Executive shall be entitled to seek
specific performance of his right to be paid until he terminates employment with
the Bank during the pendency of any dispute or controversy arising under or in
connection with this Agreement. The prevailing party in said arbitrators award
shall, in addition to any other remedies awarded, be entitled to reasonable
attorney's fees, costs and disbursements. In the case of a settlement prior to
arbitrator's award each party shall bear its attorney's fees, costs and
disbursements.
IN WITNESS WHEREOF, the Executive and the Bank have signed this
Agreement.
EXECUTIVE: LONG ISLAND COMMERCIAL BANK
/s/ Xxxxxx Xxxxxxxxx BY: /s/ Xxxxxx Xxxxxxxx
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XXXXXX XXXXXXXXX XXXXXX XXXXXXXX
CHAIRMAN OF THE BOARD
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