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EXHIBIT 10.9
XXXXXXX SAVINGS BANK, S.L.A.
CHANGE IN CONTROL AGREEMENT
This AGREEMENT ("Agreement") is hereby entered into as of March 17th, 2004, by
and between XXXXXXX SAVINGS BANK, S.L.A. (the "Bank"), a New Jersey-chartered
financial institution, with its principal offices at 0000 Xxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxxxx 00000, and XXXXXXXXX X. PIANO ("Executive").
WHEREAS, the Bank recognizes the substantial contributions of Executive and
wishes to protect her position with the Bank in the event of a change in control
of the Bank or Clifton Savings Bancorp, Inc. (the "Company"), a
federally-chartered corporation and the holding company of the Bank, for the
period provided for in this Agreement; and
WHEREAS, Executive and the Board of Directors of the Bank desire to enter into
an agreement setting forth the terms and conditions of payments due to Executive
in the event of a change in 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:
1. TERM OF AGREEMENT.
(a) The term of this Agreement shall be (i) the initial term, consisting of the
period commencing on the date of this Agreement (the "Effective Date") and
ending on the second anniversary of the Effective Date, plus (ii) any and all
extensions of the initial term made pursuant to this Section 1.
(b) Commencing on the first anniversary of the Effective Date and as of each
anniversary thereafter, the Board of Directors of the Bank (the "Board of
Directors") may extend the term of this Agreement for an additional one (1) year
period beyond the then effective expiration date, provided that Executive shall
not have given at least sixty (60) days' written notice of her desire that the
term not be extended.
2. CHANGE IN CONTROL.
(a) Upon the occurrence of a Change in Control of the Bank or the Company (as
herein defined) followed at any time during the term of this Agreement by the
termination of Executive's employment in accordance with the terms of this
Agreement, other than for Just Cause, as defined in Section 2(c) of this
Agreement, the provisions of Section 3 of this Agreement shall apply. Upon the
occurrence of a Change in Control, Executive shall have the right to elect to
voluntarily terminate her employment at any time during the term of this
Agreement following any demotion, loss of title, office or significant
authority, material reduction in her annual compensation or benefits, or
relocation of her principal place of employment by more than twenty-five (25)
miles from its location immediately prior to the
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Change in Control; provided, however, Executive may consent in writing to any
such demotion, loss, reduction or relocation. The effect of any written consent
of Executive under this Section 2(a) shall be strictly limited to the terms
specified in such written consent.
(b) For purposes of this Agreement, a "Change in Control" of the Bank or Company
shall mean one of the following events: (i) there occurs a change in control of
the Bank, as defined or determined either by the Bank's primary federal
regulator or under regulations promulgated by such regulator; (ii) as a result
of, or in connection with, a merger or other business combination, sale of
assets or contested election, the persons who were directors of the Bank before
such transaction or event cease to constitute a majority of the Board of
Directors of the Bank or its successor; (iii) the Bank transfers all or
substantially all of its assets to another corporation or entity which is not an
affiliate of the Bank; (iv) the Bank is merged or consolidated with another
corporation or entity and, as a result of such merger or consolidation, less
than 60% of the equity interest in the surviving or resulting corporation is
owned by the former shareholders or depositors of the Bank; (v) the Company
merges into or consolidates with 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; (vi) the Company files, or is
required to file, a report on Schedule 13D, or another form or schedule required
under Sections 13(d) or 14(d) of the Securities Exchange Act of 1934, disclosing
that the filing person or persons acting in concert has or have become the
beneficial owner(s) of 25% or more of a class of the Company's voting
securities, except for beneficial ownership of Company voting shares held in a
fiduciary capacity by an entity of which the Company directly or indirectly owns
50% or more of its outstanding voting securities; (vii) during any period 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 thereof, provided that any person becoming a director
subsequent to the date hereof whose election was approved by a vote of at least
two-thirds (?) 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 (viii) the Company sells to a third party all or substantially
all of its assets.
(c) Executive shall not have the right to receive termination benefits pursuant
to Section 3 hereof upon termination for Just Cause. The term "Just Cause" shall
mean termination because of Executive's personal dishonesty, incompetence,
willful misconduct, any breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of any law,
rule, regulation (other than traffic violations or similar offenses), final
cease and desist order, or any material breach of any provision of this
Agreement. Notwithstanding the foregoing, Executive shall not be deemed to have
been terminated for Just Cause unless and until there shall have been delivered
to her a copy of a resolution duly adopted by the affirmative vote of not less
than three-fourths (3/4) of the members of the Board of Directors at a meeting
of the Board of Directors called and held for that purpose (after reasonable
notice to Executive and an opportunity for her, together with counsel, to be
heard before the Board of Directors), finding that, in the good faith opinion of
the Board of Directors, Executive was guilty of conduct justifying termination
for Just Cause and specifying the particulars thereof in detail. Executive shall
not have the right to receive compensation or other benefits for any period
after termination
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for Just Cause. During the period beginning on the date of the
Notice of Termination for Just Cause pursuant to Section 4 hereof through the
Date of Termination, stock options granted to Executive under any stock option
plan shall not be exercisable nor shall any unvested awards granted to Executive
under any stock benefit plan of the Bank, the Company or any subsidiary or
affiliate thereof, vest. At the Date of Termination, such stock options and
related limited rights and any such unvested awards, shall become null and void
and shall not be exercisable by or delivered to Executive at any time subsequent
to such termination for Just Cause.
3. TERMINATION BENEFITS.
(a) Upon the occurrence of a Change in Control, followed at any time during the
term of this Agreement by the voluntary (in accordance with Section 2(a) of this
Agreement) or involuntary termination of Executive's employment, other than a
termination for Just Cause, the Bank shall be obligated to pay Executive, or in
the event of her subsequent death, her beneficiary or beneficiaries, or her
estate, as the case may be, a sum equal to two (2) times the following items:
(i) the average of any taxable income included by the Bank or the
Company on Executive's Form W-2 or reflected on a Form 1099 provided by
the Bank or the Company to Executive, excluding A) income attributable
to Executive's exercise of a non-statutory stock option, B) income
related to Executive's disqualifying disposition of an incentive stock
option to acquire Company common stock, or C) income related to the
distribution of benefits under any tax-qualified or non-tax-qualified
retirement or deferred compensation plan or arrangement sponsored by
the Company or the Bank, during each of the five (5) most recently
completed calendar years preceding the Change in Control.
(ii) the sum of the average of the value of the deferrals, allocations,
or contributions made by Executive or on behalf of Executive by the
Bank, during each of the five (5) most recently completed calendar
years preceding the Change in Control, under the Bank's employee stock
ownership and 401(k) savings plans. For purposes of this clause (ii),
the value of allocations made to Executive under the employee stock
ownership plan or the supplemental executive retirement plan shall be
valued by reference to the fair market value of Company common stock as
of the date of allocation.
(b) Upon the occurrence of a Change in Control and Executive's termination of
employment in connection therewith, to the extent that the Bank continues to
offer any life, medical, health, dental and disability insurance coverage or
arrangements in which Executive or her dependents participated immediately prior
to the Change in Control (each being a "Welfare Plan"), Executive and her
covered dependents shall continue participating in such Welfare Plans, subject
to the same premium contributions as were required immediately prior to the
Change in Control, until the earlier of (i) the Executive's death; (ii) her
employment by another employer other than one of which she is the majority
owner; or (iii) the expiration of twenty-four months. If the company or the Bank
does not offer the Welfare Plans at any time after the Change in Control, the
Company shall provide Executive with a payment equal to the premiums for such
benefits for the period which runs until the earlier of (i) her death; (ii) her
employment by an employer other than one of which she is the majority owner; or
(iii) the expiration of twenty-four months.
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(c) Notwithstanding the preceding provisions of this Section 3, in no event
shall the aggregate payments or benefits to be made or afforded to Executive
under said paragraphs (the "Termination Benefits") constitute an "excess
parachute payment" under Section 280G of the Code or any successor thereto, and
in order to avoid such a result, Termination 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 Executive's "base
amount," as determined in accordance with said Section 280G. The allocation of
the reduction required hereby among the Termination Benefits provided by this
Section 3 shall be determined by Executive.
4. NOTICE OF TERMINATION.
(a) Any purported termination by the Bank or by Executive shall be communicated
by Notice of Termination to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in detail the facts and circumstances claimed to provide a basis
for termination of Executive's employment under the provision so indicated.
(b) "Date of Termination" shall mean the date specified in the Notice of
Termination (which, in the case of a termination for Just Cause, shall not be
less than thirty (30) days from the date such Notice of Termination is given).
5. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or check
from the general funds of the Bank. The Company, however, unconditionally
guarantees payment and provision of all amounts and benefits due hereunder to
Executive and, if such amounts and benefits due from the Bank are not timely
paid or provided by the Bank, such amounts and benefits shall be paid or
provided by the Company.
6. 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 Bank and Executive, except that this
Agreement shall not affect or operate to reduce any benefit or compensation
inuring to Executive of a kind elsewhere provided. No provision of this
Agreement shall be interpreted to mean that Executive is subject to receiving
fewer benefits than those available to her without reference to this Agreement.
Nothing in this Agreement shall confer upon Executive the right to continue in
the employ of the Bank or shall impose on the Bank any obligation to employ or
retain Executive in its employ for any period.
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7. 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,
Executive, the Bank and their respective successors and assigns.
8. 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 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.
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. In addition, references herein to the
masculine shall apply to both the masculine and the feminine.
11. GOVERNING LAW.
The validity, interpretation, performance, and enforcement of this Agreement
shall be governed by the laws of the State of New Jersey, without regard to
principles of conflicts of law of that State.
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12. ARBITRATION.
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 her right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
13. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by Executive pursuant to any dispute
or question of interpretation relating to this Agreement shall be paid or
reimbursed by the Bank, only if Executive is successful pursuant to a legal
judgment, arbitration or settlement.
14. INDEMNIFICATION.
The Company or the Bank shall provide Executive (including her heirs, executors
and administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense and shall indemnify Executive (and her
heirs, executors and administrators) to the fullest extent permitted under
applicable law against all expenses and liabilities reasonably incurred in
connection with or arising out of any action, suit or proceeding in which she
may be involved by reason of having been a director or officer of the Company or
the Bank (whether or not she continues to be a director or officer at the time
of incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgments, court costs, attorneys' fees and the
cost of reasonable settlements.
15. SUCCESSORS TO THE BANK AND THE COMPANY.
The Bank and the Company shall require any successor or assignee, whether direct
or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all of the business or assets of the Bank or the Company,
expressly and unconditionally to assume and agree to perform the Bank's and the
Company's obligations under this Agreement, in the same manner and to the same
extent that the Bank and the Company would be required to perform if no such
succession or assignment had taken place.
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SIGNATURES
IN WITNESS WHEREOF, Xxxxxxx Savings Bank and Clifton Savings Bancorp, Inc. have
caused this Agreement to be executed and their seals to be affixed hereunto by
their duly authorized officers, and Executive has signed this Agreement, on the
17th day of March, 2004.
ATTEST: XXXXXXX SAVINGS BANK, S.L.A.
/s/ Xxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxxxx, Xx.
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Corporate Secretary For the Entire Board of Directors
ATTEST: CLIFTON SAVINGS BANCORP, INC.
/s/ Xxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxxxx, Xx.
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Corporate Secretary For the Entire Board of Directors
[SEAL]
WITNESS: EXECUTIVE
/s/ Xxxxxx Xxxxxx /s/ Xxxxxxxxx X. Piano
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Corporate Secretary Xxxxxxxxx X. Piano
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