BCB BANCORP, INC.
CHANGE IN CONTROL AGREEMENT
FOR
XXXXXX XXXXXXX
This AGREEMENT is made effective as of October 12, 2006 by and between BCB
BANCORP, INC., (the "Company"), and XXXXXX XXXXXXX (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 President and Chief Executive Officer for the Company and in the
position of President and Chief Executive 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 October 12,
2006 and continuing on October 12th 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 2005
Proposed Treasury Regulations section 1.409A-3(g)(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 2005 Proposed Treasury Regulations section 1.409A-3(g)(5)(vi)(B))
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 35 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 2005 Proposed Treasury Regulations section
1.409A-3(g)(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
2005 Proposed Treasury Regulations section 1.409A-3(g)(5), except to the extent
that such proposed 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. "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"
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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 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 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
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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.
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.
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
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substantially all the business or assets of the Company or the Bank, expressly
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
-----------------------------
Xxxx X. Xxxxx
Chairman of the Board
BAYONNE COMMUNITY BANK
By: /s/ Xxxx X. Xxxxx
-----------------------------
Xxxx X. Xxxxx
Chairman of the Board
EXECUTIVE
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx
President and Chief Executive Officer
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