EXHIBIT 10(c)
EMPLOYMENT AGREEMENT
BY AND BETWEEN
U.S.B. HOLDING CO., INC.
UNION STATE BANK
AND
XXXXXX X. XXXXXXXX
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Made and Entered Into As of
November 16, 1998
As Amended November 8, 2000
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EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of
November 16, 1998 by and between U.S.B. HOLDING CO., INC., a publicly held
business corporation organized and operating under the laws of the State of
Delaware (the "Company") and Union State Bank (the "Bank"), both having an
office at 000 Xxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxx 00000 and XXXXXX X.
XXXXXXXX, an individual residing at 00 Xxxxxx Xxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000
("Xx. Xxxxxxxx").
WITNESSETH:
WHEREAS, Xx. Xxxxxxxx currently serves the Company and the Bank in the
capacity of Senior Executive Vice President, Chief Financial Officer and
Assistant Secretary; and
WHEREAS, the Company and the Bank desire to assure for themselves the
continued availability of Xx. Xxxxxxxx'x services and the ability of Xx.
Xxxxxxxx to perform such services; and
WHEREAS, Xx. Xxxxxxxx is willing to continue to serve the Company and the
Bank on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and conditions hereinafter set forth, the Company and the Bank and Xx. Xxxxxxxx
hereby agree as follows:
SECTION 1. EMPLOYMENT
The Company and the Bank agree to continue to employ Xx. Xxxxxxxx in the
capacities stated above, and Xx. Xxxxxxxx hereby agrees to such continued
employment, during the period and upon the terms and conditions set forth in
this Agreement.
SECTION 2. EMPLOYMENT PERIOD; REMAINING UNEXPIRED EMPLOYMENT PERIOD
(a) The terms and conditions of this Agreement shall be and remain in
effect during the period of employment established under this Section 2
("Employment Period"). The Employment Period shall be for a term of three years
beginning on the date of this Agreement and ending on the third anniversary date
of this Agreement (an "Anniversary Date"), plus such extensions, if any, as are
provided for in this Agreement or otherwise agreed to by the Boards of Directors
of the Company and the Bank (collectively, the "Boards").
(b) Nothing in this Agreement shall be deemed to prohibit the Company
and/or the Bank at any time from terminating Xx. Xxxxxxxx'x employment during
the Employment Period with or without notice for any reason; provided, however,
that the relative rights and obligations of the Company and the Bank and Xx.
Xxxxxxxx in the event of any such termination shall be determined under this
Agreement.
PAGE 1 OF 15
SECTION 3. DUTIES
Xx. Xxxxxxxx shall serve as Senior Executive Vice President, Chief
Financial Officer and Assistant Secretary of the Company and the Bank, having
such power, authority and responsibility and performing such duties as are
prescribed by or under the By-Laws of the Company or the Bank and as are
customarily associated with such position. Xx. Xxxxxxxx shall devote his full
business time and attention (other than during weekends, holidays, approved
vacation periods, and periods of illness or approved leaves of absence) to the
business and affairs of the Company and the Bank and shall use his best efforts
to advance the interests of the Company and the Bank.
SECTION 4. CASH COMPENSATION
In consideration for the services to be rendered by Xx. Xxxxxxxx
hereunder, the Company and the Bank shall together pay to him a salary at an
initial annual rate of ONE HUNDRED SIXTY THOUSAND DOLLARS ($160,000), payable in
approximately equal installments in accordance with the Company's and Bank's
customary payroll practices for senior officers. On each Anniversary Date
occurring during the Employment Period, Xx. Xxxxxxxx'x annual rate of salary
shall be reviewed and increased as determined by the Chairman of the Board,
President and Chief Executive Officer of the Company and/or the Bank. In
addition to salary, Xx. Xxxxxxxx may receive other cash compensation from the
Company or the Bank for services hereunder at such times, in such amounts and on
such terms and conditions as determined by the Chairman of the Board, President
and Chief Executive Officer of the Company and/or the Bank from time to time.
The Company and the Bank agree to pay to Xx. Xxxxxxxx a minimum annual
bonus of 1.0 percent, or a percent as otherwise provided on mutual agreement
between the parties, to be computed based upon the net profits realized by the
consolidated earnings of the Company and the Bank and their affiliates in
accordance with the Executive Compensation Plan which has been adopted by the
Board.
Xx. Xxxxxxxx shall be granted stock options by the Company of no less than
36,300 shares each year during the term of this Agreement under the Company's
Employee Stock Option Plans as may be established by the Company, such stock
options to be adjusted for stock dividends and stock splits after the date of
this Agreement by the Company during the term of this Agreement. Upon the
exercise of options with existing owned stock, additional options to purchase
stock will be issued to Xx. Xxxxxxxx in an amount equivalent to such Company
stock utilized in the exercise. In addition, if Xx. Xxxxxxxx sells existing
owned stock or stock acquired as a result of such exercise of options to pay
income taxes as a result of the exercise of options or sells stock acquired upon
exercise of options ("cashless exercise"), Xx. Xxxxxxxx shall be awarded new
options to purchase Company stock equivalent to the number of shares of Company
stock sold under the circumstances described in this sentence.
The foregoing salary shall be in addition to the monthly Board fees
presently paid to Xx. Xxxxxxxx or as hereafter provided by the Boards or any
Board of Directors of an affiliate of the Company or the Bank.
Xx. Xxxxxxxx, at his option, shall be allowed to defer any portion of his
cash compensation in accordance with any plan approved by the Company or the
Bank.
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SECTION 5. INSURANCE
If Xx. Xxxxxxxx should become disabled during the term of this Agreement,
the Company and the Bank will compensate Xx. Xxxxxxxx for the difference between
any disability insurance, the premiums for which are paid by the Company and the
Bank, and Xx. Xxxxxxxx'x full salary for the balance of the term of this
Agreement and thereafter for a period of six months after the termination of
this Agreement. Full fringe benefits will continue through the earlier of (i)
the balance of the term of this Agreement or (ii) the period of Xx. Xxxxxxxx'x
disability.
In accordance with the foregoing, the Company and/or the Bank will
maintain and pay the premiums for the following life insurance policy on the
life of Xx. Xxxxxxxx: Universal Life Policy No. 00122102 of Security Mutual Life
Insurance Company in the amount of $1,000,000. The beneficiaries under the
foregoing policy of insurance shall be designated by Xx. Xxxxxxxx.
SECTION 6. EMPLOYEE BENEFIT PLANS AND PROGRAMS
During the Employment Period, Xx. Xxxxxxxx shall be treated as an employee
of the Company and the Bank and shall be entitled to participate in and receive
benefits under any and all qualified or non-qualified retirement, pension,
savings, profit-sharing or stock bonus plans, any and all group life, health
(including hospitalization, medical and major medical), dental, accident and
long-term disability insurance plans, and any other employee benefit and
compensation plans (including but not limited to, any incentive compensation
plans or programs, stock option and appreciation rights plans and restricted
stock plans) as may from time to time be maintained by, or cover employees of,
the Company or the Bank, in accordance with the terms and conditions of such
employee benefit plans and programs and compensation plans and programs which
are consistent with the Company's and the Bank's customary practices.
SECTION 7. INDEMNIFICATION AND INSURANCE
(a) During the Employment Period and for a period of six (6) years
thereafter, the Company or the Bank shall cause Xx. Xxxxxxxx to be covered by
and named as an insured under any policy or contract of insurance obtained by it
to insure its directors and officers against personal liability for acts or
omissions in connection with service as an officer or director of the Company or
the Bank or service in other capacities at the request of the Company or the
Bank. The coverage provided to Xx. Xxxxxxxx pursuant to this Section 7 shall be
of the same scope and on the same terms and conditions as the coverage (if any)
provided to other officers or directors of the Company and the Bank.
(b) To the maximum extent permitted under applicable law, during the
Employment Period and for a period of six (6) years thereafter, the Company and
the Bank shall indemnify Xx. Xxxxxxxx against and hold him harmless from any
costs, liabilities, losses and expenses to the fullest extent and on the most
favorable terms and conditions that similar indemnification is offered to any
director or officer of the Company, the Bank or any subsidiary or affiliate
thereof.
SECTION 8. OUTSIDE ACTIVITIES
Xx. Xxxxxxxx may serve as a member of a board of directors of such
business, community and
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charitable organizations as he may disclose to and as may be approved by the
Chairman of the Board, President and Chief Executive Officer of the Company
and/or the Bank, which approval shall not be unreasonably withheld; provided,
however, that such service shall not materially interfere with the performance
of his duties under this Agreement. Xx. Xxxxxxxx may also engage in personal
business and investment activities which do not materially interfere with the
performance of his duties hereunder; provided, however, that such activities are
not prohibited under any code of conduct or investment or securities trading
policy established by the Company and/or Bank and generally applicable to all
similarly situated executives. Xx. Xxxxxxxx may also serve as an officer or
director of any subsidiary of the Company or the Bank. If Xx. Xxxxxxxx is
discharged or suspended, or is subject to any regulatory prohibition or
restriction with respect to participation in the affairs of the Company or the
Bank, he shall continue to perform services for the Company and the Bank in
accordance with this Agreement but shall not directly or indirectly provide
services to or participate in the affairs of the Company and the Bank in a
manner inconsistent with the terms of such discharge or suspension or any
applicable regulatory order.
SECTION 9. WORKING FACILITIES AND EXPENSES
Xx. Xxxxxxxx'x principal place of employment shall be at the Company's and
the Bank's executive offices at the address first above written, or at such
other location at which the Company or the Bank shall maintain its principal
executive offices, or at such other location as the Company and the Bank and Xx.
Xxxxxxxx may mutually agree upon. The Company or the Bank shall provide Xx.
Xxxxxxxx at his principal place of employment with a private office, secretarial
services, an automobile, and other support services and facilities suitable to
his position with the Company and the Bank and necessary or appropriate in
connection with the performance of his assigned duties under this Agreement. The
Company or the Bank shall provide to Xx. Xxxxxxxx for his exclusive use an
automobile owned or leased by the Company or the Bank appropriate to his
position, to be used in the performance of his duties hereunder, including
commuting to and from his personal residence. The Company or the Bank shall
reimburse Xx. Xxxxxxxx for his ordinary and necessary business expenses,
including, without limitation, all expenses associated with his business use of
the aforementioned automobile, fees for memberships in such clubs and
organizations as Xx. Xxxxxxxx and the Company or the Bank shall mutually agree
are necessary and appropriate for business purposes, and his travel and
entertainment expenses incurred in connection with the performance of his duties
under this Agreement, in each case upon presentation to the Company or the Bank
of an itemized account of such expenses in such form as the Company or the Bank
may reasonably require.
The Company and the Bank shall specifically pay the annual membership fees
of one Country Club membership for Xx. Xxxxxxxx.
SECTION 10. VACATION
Xx. Xxxxxxxx shall be entitled annually to vacation time of five (5) weeks
in total and two (2) personal days, or any additional vacation and personal time
agreed to by the parties or permitted by Company or Bank policy.
SECTION 11. TERMINATION OF EMPLOYMENT WITH SEVERANCE BENEFITS
(a) Xx. Xxxxxxxx shall be entitled to the severance benefits described
herein in the event
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that his employment with the Company or the Bank terminates during the
Employment Period under any of the following circumstances:
(i) Xx. Xxxxxxxx'x voluntary resignation from employment with the
Company and the Bank within ninety (90) days following:
(A) the failure of the Boards to appoint or re-appoint or elect or
re-elect Xx. Xxxxxxxx to the office of Senior Executive Vice President,
Chief Financial Officer and Assistant Secretary (or a more senior office)
of the Company and the Bank;
(B) the expiration of a thirty (30) day period following the date on
which Xx. Xxxxxxxx gives written notice to the Company and/or the Bank of
its material failure, whether by amendment of the Company's or the Bank's
Organization Certificate or By-laws, action of the Boards or the Company's
or the Bank's stockholders or otherwise, to vest in Xx. Xxxxxxxx the
functions, duties, or responsibilities prescribed in Section 3 of this
Agreement, unless, during such thirty (30) day period, the Company and/or
the Bank cures such failure in a manner determined by Xx. Xxxxxxxx and the
Boards to be satisfactory; or
(C) the expiration of a thirty (30) day period following the date on
which Xx. Xxxxxxxx gives written notice to the Company and/or the Bank of
its material breach of any term, condition or covenant contained in this
Agreement (including, without limitation any reduction of Xx. Xxxxxxxx'x
rate of base salary in effect from time to time and any change in the
terms and conditions of any compensation or benefit program in which Xx.
Xxxxxxxx participates which, either individually or together with other
changes, has a material adverse effect on the aggregate value of his total
compensation package), unless, during such thirty (30) day period, the
Company and/or the Bank cures such failure in a manner determined by Xx.
Xxxxxxxx and the Boards to be satisfactory; or
(ii) Xx. Xxxxxxxx'x death; or
(iii) subject to the provisions of Section 12, the termination of Xx.
Xxxxxxxx'x employment with the Company or the Bank for any other reason
not described in Section 11(a).
(b) Upon the termination of Xx. Xxxxxxxx'x employment with the Company
and/or the Bank under circumstances described in Section 11(a) of this
Agreement, the Company or the Bank shall pay and provide to Xx. Xxxxxxxx (or, in
the event of his death, to his estate):
(i) his earned but unpaid compensation (including, without limitation, all
items which constitute wages under Section 190.1 of the New York Labor Law
and the payment of which is not otherwise provided for under this Section
11(b)) as of the date of the termination of his employment with the
Company and the Bank, such payment to be made at the time and in the
manner prescribed by law applicable to the payment of wages but in no
event later than thirty (30) days after termination of employment;
(ii) the benefits, if any, to which he is entitled as a former employee
under the employee benefit plans and programs and compensation plans and
programs maintained for the benefit
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of the Company's and the Bank's officers and employees;
(iii) continued group life, health (including hospitalization, medical and
major medical and the insurance provided under Section 5), dental,
accident and long term disability insurance benefits, in addition to that
provided pursuant to Section 11(b)(ii), and after taking into account the
coverage provided by any subsequent employer, if and to the extent
necessary to provide for Xx. Xxxxxxxx, for the Remaining Unexpired
Employment Period, coverage equivalent to the coverage to which he would
have been entitled under such plans (as in effect on the date of his
termination of employment, or, if his termination of employment occurs
after a Change of Control, on the date of such Change of Control,
whichever benefits are greater), if he had continued working for the
Company and the Bank during the Remaining Unexpired Employment Period at
the highest annual rate of compensation achieved during that portion of
the Employment Period which is prior to Xx. Xxxxxxxx'x termination of
employment with the Company or the Bank;
(iv) within thirty (30) days following his termination of employment with
the Company and/or the Bank, a lump sum payment, in an amount equal to the
present value of the salary that Xx. Xxxxxxxx would have earned if he had
continued working for the Company and the Bank for one year at the highest
annual rate of salary achieved during that portion of the Employment
Period which is prior to Xx. Xxxxxxxx'x termination of employment with the
Company and the Bank, where such present value is to be determined using a
discount rate equal to the applicable short-term federal rate prescribed
under Section 1274(d) of the Internal Revenue Code of 1986 ("Code"),
compounded using the compounding period corresponding to the Company's and
the Bank's regular payroll periods for its officers, such lump sum to be
paid in lieu of all other payments of salary provided for under this
Agreement in respect of the period following any such termination. At the
option of Xx. Xxxxxxxx, such payments may be made in equal monthly
installments over a period of not less than three years, nor more than
five years, in which case such payments will not be discounted;
(v) within thirty (30) days following his termination of employment with
the Company and/or the Bank, a lump sum payment in an amount equal to the
present value of the additional employer contributions to which he would
have been entitled under any and all qualified and non-qualified defined
contribution plans maintained by, or covering employees of, the Company
and the Bank, if he were 100% vested thereunder and had continued working
for the Company and the Bank, during the Remaining Unexpired Employment
Period at the highest annual rate of compensation achieved during that
portion of the Employment Period which is prior to Xx. Xxxxxxxx'x
termination of employment with the Company or the Bank, and making the
maximum amount of employee contributions, if any, required under such plan
or plans, such present value to be determined on the basis of a discount
rate, compounded using the compounding period that corresponds to the
frequency with which employer contributions are made to the relevant plan,
equal to the applicable PBGC Rate. At the option of Xx. Xxxxxxxx, such
payments may be made in equal monthly installments over a period of not
less than three, nor more than five years, in which case such payments
will not be discounted;
(vi) the payment that would have been made to Xx. Xxxxxxxx under any cash
bonus or
PAGE 6 OF 15
long-term or short-term cash incentive compensation plan maintained by, or
covering employees of, the Company or the Bank, if he had continued
working for the Company or the Bank during the Remaining Unexpired
Employment Period and had earned the maximum bonus or incentive award in
each calendar year that ends during the Remaining Unexpired Employment
Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever available
to Xx. Xxxxxxxx under such incentive compensation plan, multiplied by
(B) net income of the Company for the most recent fiscal year which
is prior to Xx. Xxxxxxxx'x termination of employment with the Company;
such payments to be made in a lump sum payment in an amount equal to the
present value of such payments as if made in accordance with Company's
and/or Bank's Executive Bonus Plan, where such present value is to be
determined using a discount rate equal to the applicable short-term
federal rate prescribed under Section 1274(d) of the Code, within thirty
(30) days following Xx. Xxxxxxxx'x termination of employment. At the
option of Xx. Xxxxxxxx, such payments may be made in equal monthly
installments over a period of not less than three, nor more than five
years, in which case such payments will not be discounted;
(vii) at the election of the Company and the Bank made within thirty (30)
days following his termination of employment with the Company and the
Bank, upon the surrender of stock options or stock appreciation rights
issued to Xx. Xxxxxxxx under any stock option and appreciation rights plan
or program maintained by, or covering employees of, the Company and the
Bank, a lump sum payment in an amount equal to the product of:
(A) the excess of (i) the fair market value of a share of stock of
the same class as the stock subject to the option or appreciation right,
determined as of the date of termination of employment, over (ii) the
exercise price per share for such option or appreciation right, as
specified in or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which options or
appreciation rights are being surrendered.
For purposes of this Section 11(b)(vii) and for purposes of determining
Xx. Xxxxxxxx'x right following his termination of employment with the
Company or Bank to exercise any options or appreciation rights not
surrendered pursuant hereto, Xx. Xxxxxxxx shall be deemed fully vested in
all options and appreciation rights under any stock option or appreciation
rights plan or program maintained by, or covering employees of, the
Company or Bank, even if he is not vested under such plan or program, and
shall have a period of three months from the date of termination of
employment to exercise such stock options or appreciation rights.
(viii) at the election of the Company or the Bank made within thirty (30)
days following Xx. Xxxxxxxx'x termination of employment with the Company
and the Bank, upon the surrender of any shares awarded to Xx. Xxxxxxxx
under any restricted stock plan maintained by, or covering employees of,
the Company and the Bank, a lump sum payment in an amount equal to the
product of:
PAGE 7 OF 15
(A) the fair market value of a share of stock of the same class of
stock granted under such plan, determined as of the date of Xx. Xxxxxxxx
termination of employment; multiplied by
(B) the number of shares which are being surrendered.
For purposes of this Section 11(b)(viii) and for purposes of determining
Xx. Xxxxxxxx'x right following his termination of employment with the
Company and the Bank to any stock not surrendered pursuant hereto, Xx.
Xxxxxxxx shall be deemed fully vested in all shares awarded under any
restricted stock plan maintained by, or covering employees of, the Company
and the Bank, even if he is not vested under such plan;
(ix) the title to the car then currently provided to Xx. Xxxxxxxx shall be
transferred to Xx. Xxxxxxxx.
The Company and the Bank and Xx. Xxxxxxxx hereby stipulate that the damages
which may be incurred by Xx. Xxxxxxxx following any such termination of
employment are not capable of accurate measurement as of the date first above
written and that the payments and benefits contemplated by this Section 11(b)
constitute reasonable damages under the circumstances and shall be payable
without any requirement of proof of actual damage and without regard to Xx.
Xxxxxxxx'x efforts, if any, to mitigate damages. The Company and the Bank and
Xx. Xxxxxxxx further agree that the Company and the Bank may condition the
payments and benefits (if any) due under Sections 11(b)(iii), (iv), (v), (vi),
and (vii) on the receipt of Xx. Xxxxxxxx'x resignation from any and all
positions which he holds as an officer, director or committee member with
respect to the Company, the Bank or any subsidiary or affiliate of either of
them.
SECTION 12. TERMINATION WITHOUT ADDITIONAL COMPANY/BANK LIABILITY
(a) In the event that Xx. Xxxxxxxx employment with the Company and the
Bank shall terminate during the Employment Period on account of:
(i) the discharge of Xx. Xxxxxxxx for "cause," which, for purposes of this
Agreement shall mean: (A) Xx. Xxxxxxxx intentionally engages in dishonest
conduct in connection with his performance of services for the Company or
the Bank resulting in his conviction of a felony; (B) Xx. Xxxxxxxx is
convicted of, or pleads guilty or NOLO CONTENDERE to, a felony or any
crime involving moral turpitude; (C) Xx. Xxxxxxxx willfully fails or
refuses to perform his duties under this Agreement and fails to cure such
breach within sixty (60) days following written notice thereof from the
Company or the Bank; (D) Xx. Xxxxxxxx breaches his fiduciary duties to the
Company or the Bank for personal profit; or (E) Xx. Xxxxxxxx'x willful
breach or violation of any law, rule or regulation (other than traffic
violations or similar offenses), or final cease and desist order in
connection with his performance of services for the Company or the Bank;
(ii) Xx. Xxxxxxxx'x voluntary resignation from employment with the Company
and the Bank for reasons other than those specified in Section 11(a); or
(iii) a determination that Xx. Xxxxxxxx is eligible for long-term
disability benefits under
PAGE 8 OF 15
the Company's or Bank's long-term disability insurance program or, if
there is no such program, under the federal Social Security Act;
then the Company and the Bank shall have no further obligations under this
Agreement, other than the payment to Xx Xxxxxx (or, in the event of his death,
to his estate) of his earned but unpaid salary as of the date of the termination
of his employment, and the provision of such other benefits, if any (including
but not limited to the benefits contemplated by Sections 5 and 7), to which he
is entitled as a former employee under the employee benefit plans and programs,
compensation plans and programs, and indemnification and insurance plans and
programs maintained by, or covering employees of, the Company or the Bank.
(b) For purposes of Section 12(a)(i)(A) or (B), no act or failure to act,
on the part of Xx. Xxxxxxxx, shall be considered "willful" unless it is done, or
omitted to be done, by Xx. Xxxxxxxx in bad faith or without reasonable belief
that Xx. Xxxxxxxx'x action or omission was in the best interests of the Company
or the Bank. Any act, or failure to act, based upon authority given pursuant to
a resolution duly adopted by the Boards or based upon the written advice of
counsel for the Company or the Bank shall be conclusively presumed to be done,
or omitted to be done, by Xx. Xxxxxxxx in good faith and in the best interests
of the Company or the Bank. The cessation of employment by Xx. Xxxxxxxx shall
not be deemed to be for "cause" within the meaning of Section 12(a)(i) unless
and until there shall have been delivered to Xx. Xxxxxxxx a copy of a resolution
duly adopted by the affirmative vote of three-fourths of the non-employee
members of the Boards at a meeting of the Boards called and held for such
purpose (after reasonable notice is provided to Xx. Xxxxxxxx and Xx. Xxxxxxxx is
given an opportunity, together with counsel, to be heard before the Boards),
finding that, in the good faith opinion of the Boards, Xx. Xxxxxxxx is guilty of
the conduct described in Section 12(a)(i) above, and specifying the particulars
thereof in detail.
SECTION 13. TERMINATION UPON OR FOLLOWING A CHANGE OF CONTROL
(a) A change of control of the Company or the Bank ("Change of Control")
shall be deemed to have occurred upon the happening of any of the following
events:
(i) approval by the stockholders of the Company or the Bank of a
transaction that would result in the reorganization, merger or
consolidation of the Company or the Bank, respectively, with one or more
other persons, other than a transaction following which:
(A) at least 51% of the equity ownership interests of the entity
resulting from such transaction are beneficially owned (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) in substantially the
same relative proportions by persons who, immediately prior to such
transaction, beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) at least 51% of the outstanding equity
ownership interests in the Company or the Bank; and
(B) at least 51% of the securities entitled to vote generally in the
election of directors of the entity resulting from such transaction are
beneficially owned (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) in substantially the same relative proportions by persons
who, immediately prior to such transaction, beneficially owned (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) at least 51%
PAGE 9 OF 15
of the securities entitled to vote generally in the election of directors
of the Company or the Bank;
(ii) the acquisition of all or substantially all of the assets of the
Company or the Bank or beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of the
outstanding securities of the Company or the Bank entitled to vote
generally in the election of directors by any person or by any persons
acting in concert, or approval by the stockholders of the Company or the
Bank of any transaction which would result in such an acquisition;
(iii) a complete liquidation or dissolution of the Company or the Bank, or
approval by the stockholders of the Company or the Bank of a plan for such
liquidation or dissolution;
(iv) the occurrence of any event if, immediately following such event, at
least 50% of the members of the board of directors of the Company or the
Bank do not belong to any of the following groups:
(A) individuals who were members of the board of directors of the
Company or the Bank on the date of this Agreement; or
(B) individuals who first became members of the board of directors
of the Company or the Bank after the date of this Agreement either:
(I) upon election to serve as a member of the board of
directors of the Company or the Bank by affirmative vote of
three-quarters of the members of such board, in office at the time
of such first election; or
(II) upon election by the stockholders to serve as a member of
the board of directors of the Company or the Bank, but only if
nominated for election by affirmative vote of three-quarters of the
members of the board of directors of the Company or the Bank, or of
a nominating committee thereof, in office at the time of such first
nomination;
provided, however, that such individual's election or nomination did not
result from an actual or threatened election contest (within the meaning
of Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents (within the
meaning of Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) other than by or on behalf of the Board of the Company or the Bank.
In no event, however, shall a Change of Control be deemed to have occurred as a
result of any acquisition of securities or assets of the Company, the Bank, or a
subsidiary of either of them, by the Company, the Bank, or a subsidiary of
either of them, or by any employee benefit plan maintained by any of them. For
purposes of this Section 13(a), the term "person" shall have the meaning
assigned to it under Sections 13(d)(3) or 14(d)(2) of the Exchange Act.
(b) In the event of a Change of Control, Xx. Xxxxxxxx shall be entitled to
the payments and benefits contemplated by Section 11(b), provided, however, that
with respect to any such
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benefits or payments to be made thereunder, the benefits or payments
contemplated by Section 11(b) will be calculated as if the remaining Unexpired
Employment Period and the salary multiple in Section 11(b)(iv) are each equal to
three years in the event of his termination of employment with the Company or
the Bank under any of the circumstances described in Section 11(a) of this
Agreement or under any of the following circumstances:
(i) resignation, voluntary or otherwise, by Xx. Xxxxxxxx at any time
during the Employment Period following his demotion, loss of title, office
or significant authority or responsibility, or following any reduction in
any element of his package of compensation and benefits;
(ii) resignation, voluntary or otherwise, by Xx. Xxxxxxxx at any time
during the Employment Period following any relocation of his principal
place of employment or any change in working conditions at such principal
place of employment which Xx. Xxxxxxxx, in his reasonable discretion,
determines to be embarrassing, derogatory or otherwise adverse;
(iii) resignation, voluntary or otherwise, by Xx. Xxxxxxxx at any time
during the Employment Period following the failure of any successor to the
Company or the Bank in the Change of Control to include Xx. Xxxxxxxx in
any compensation or benefit program maintained by it or covering any of
its executive officers, unless Xx. Xxxxxxxx is already covered by a
substantially similar plan of the Company which is at least as favorable
to him; or
(iv) resignation, voluntary or otherwise, for any other reason whatsoever
following the effective date of the Change of Control.
SECTION 14. TAX INDEMNIFICATION
(a) If Xx. Xxxxxxxx'x employment terminates under circumstances entitling
him (or in the event of his death, his estate) to the payments or benefits under
Section 11(b), the Company or the Bank shall pay to Xx. Xxxxxxxx (or in the
event of his death, his estate) an additional amount intended to indemnify him
against the financial effects of the excise tax imposed on excess parachute
payments under section 280G and 4999 of the Code (the "Tax Indemnity Payment").
The Tax Indemnity Payment shall be determined under the following formula:
X = E X P
------------------------------------------
1 - [(FI x (1 - SLI)) + SLI + E + M]
where
E = the rate at which the excise tax is assessed under Section 4999 of
the Code;
P = the amount with respect to which such excise tax is assessed,
determined without regard to this Section 14;
FI = the highest marginal rate of income tax applicable to Xx. Xxxxxxxx
under the Code for
PAGE 11 OF 15
the taxable year in question;
SLI = the sum of the highest marginal rates of income tax applicable to
Xx. Xxxxxxxx under all applicable state and local laws for the
taxable year in question; and
M = the highest marginal rate of Medicare tax applicable to Xx. Xxxxxxxx
under the Code for the taxable year in question.
Such computation shall be made at the expense of the Company or the Bank by an
attorney or a firm of independent certified public accountants selected by Xx.
Xxxxxxxx and reasonably satisfactory to the Company (the "Tax Advisor") and
shall be based on the following assumptions: (i) that a change in ownership, a
change in effective ownership or control, or a change in the ownership of a
substantial portion of the assets, of the Bank or the Company has occurred
within the meaning of section 280G of the Code (a "280G Change of Control");
(ii) that all direct or indirect payments made to or benefits conferred upon Xx.
Xxxxxxxx on account of his termination of employment are "parachute payments"
within the meaning of section 280G of the Code; and (iii) that no portion of
such payments is reasonable compensation for services rendered prior to Xx.
Xxxxxxxx'x termination of employment.
(b) With respect to any payment that is presumed to be a parachute payment
for purposes of section 280G of the Code, the Tax Indemnity Payment shall be
made to Xx. Xxxxxxxx on the earlier of the date the Company, the Bank or any
direct or indirect subsidiary or affiliate of the Company or the Bank is
required to withhold such tax or the date the tax is required to be paid by Xx.
Xxxxxxxx, unless, prior to such date, the Company or the Bank delivers to Xx.
Xxxxxxxx the written opinion, in form and substance reasonably satisfactory to
him, of the Tax Advisor or of an attorney or firm of independent certified
public accountants selected by the Company or the Bank and reasonably
satisfactory to Xx. Xxxxxxxx, to the effect that Xx. Xxxxxxxx has a reasonable
basis on which to conclude that (i) no 280G Change in Control has occurred, or
(ii) all or part of the payment or benefit in question is not a parachute
payment for purposes of section 280G of the Code, or (iii) all or a part of such
payment or benefit constitutes reasonable compensation for services rendered
prior to the 280G Change of Control, or (iv) for some other reason which shall
be set forth in detail in such letter, no excise tax is due under section 4999
of the Code with respect to such payment or benefit (the "Opinion Letter"). If
the Company or the Bank delivers an Opinion Letter, the Tax Advisor shall
recompute, and the Company or the Bank shall make, the Tax Indemnity Payment in
reliance on the information contained in the Opinion Letter.
(c) In the event that Xx. Xxxxxxxx'x liability for the excise tax under
section 4999 of the Code for a taxable year is subsequently determined to be
different than the amount with respect to which the Tax Indemnity Payment is
made, Xx. Xxxxxxxx or the Company or the Bank, as the case may be, shall pay to
the other party at the time that the amount of such excise tax is finally
determined, an appropriate amount, plus interest, such that the payment made
under section 16(b), when increased by the amount of the payment made by the
Company or the Bank under this section 16(c) or decreased by the amount of the
payment made by Xx. Xxxxxxxx under this section 16(c), equals the amount that
should have properly been paid to Xx. Xxxxxxxx under section 16(a). The interest
paid to the Company under this section 16(c) shall be determined at the rate
provided under section 1274(b)(2)(B) of the Code. The payment made to Xx.
Xxxxxxxx shall include such amount of interest as is necessary to satisfy any
interest assessment made by the Internal Revenue Service
PAGE 12 OF 15
and an additional amount equal to any monetary penalties assessed by the
Internal Revenue Service on account of an underpayment of the excise tax. To
confirm that the proper amount, if any, was paid to Xx. Xxxxxxxx under this
section 16, Xx. Xxxxxxxx shall furnish to the Company or the Bank a copy of each
tax return which reflects a liability for an excise tax, at least 20 days before
the date on which such return is required to be filed with the Internal Revenue
Service. Nothing in this Agreement shall give the Company or the Bank any right
to control or otherwise participate in any action, suit or proceeding to which
Xx. Xxxxxxxx is a party as a result of positions taken on his federal income tax
return with respect to his liability for excise taxes under section 4999 of the
Code.
SECTION 15. CONFIDENTIALITY
Unless he obtains the prior written consent of the Company or the Bank,
Xx. Xxxxxxxx shall keep confidential and shall refrain from using for the
benefit of himself, or any person or entity other than the Company or the Bank
or any entity which is a subsidiary of the Company or the Bank or of which the
Company is a subsidiary, any material document or information obtained from the
Company or the Bank, or from its parent or subsidiaries, in the course of his
employment with any of them concerning their properties, operations or business
(unless such document or information is readily ascertainable from public or
published information or trade sources or has otherwise been made available to
the public through no fault of his own) until the same ceases to be material (or
becomes so ascertainable or available); provided, however, that nothing in this
Section 15 shall prevent Xx. Xxxxxxxx, with or without the Company's or Bank's
consent, from participating in or disclosing documents or information in
connection with any judicial or administrative investigation, inquiry or
proceeding to the extent that such participation or disclosure is required under
applicable law.
SECTION 16. NO EFFECT ON EMPLOYEE BENEFIT PLANS OR PROGRAMS
The termination of Xx. Xxxxxxxx'x employment during the term of this
Agreement or thereafter, whether by the Company or the Bank or by Xx. Xxxxxxxx,
shall have no effect on the rights and obligations of the parties hereto under
the Company's or Bank's qualified or non-qualified retirement, pension, savings,
thrift, profit-sharing or stock bonus plans, group life, health (including
hospitalization, medical and major medical), dental, accident and long term
disability insurance plans or such other employee benefit plans or programs, or
compensation plans or programs, as may be maintained by, or cover employees of,
the Company or the Bank from time to time.
SECTION 17. SUCCESSORS AND ASSIGNS
This Agreement will inure to the benefit of and be binding upon Xx.
Xxxxxxxx, his legal representatives and testate or intestate distributees, and
the Company and the Bank, and its successors and assigns, including any
successor by merger or consolidation or a statutory receiver or any other person
or firm or corporation to which all or substantially all of the assets and
business of the Company or the Bank may be sold or otherwise transferred.
Failure of the Company and the Bank to obtain from any successor its express
written assumption of the Company's and the Bank's obligations hereunder at
least sixty (60) days in advance of the scheduled effective date of any such
succession shall be deemed a material breach of this Agreement.
PAGE 13 OF 15
SECTION 18. NOTICES
Any communication required or permitted to be given under this Agreement,
including any notice, direction, designation, consent, instruction objection or
waiver, shall be in writing and shall be deemed to have been given at such time
as it is delivered personally, or five (5) days after mailing if mailed, postage
prepaid, by registered or certified mail, return receipt requested, addressed to
such party at the address listed below or at such other address as one such
party may by written notice specify to the other party:
If to Xx. Xxxxxxxx:
Xx. Xxxxxx X. Xxxxxxxx
00 Xxxxxx Xxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
If to the Company or the Bank:
U.S.B. Holding Co., Inc.
Union State Bank
000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Corporate Secretary
SECTION 19. SEVERABILITY
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
SECTION 20. WAIVER
Failure to insist upon strict compliance with any of the terms, covenants
or conditions hereof shall not be deemed a waiver of such term, covenant, or
condition. A waiver of any provision of this Agreement must be made in writing,
designated as a waiver, and signed by the party against whom its enforcement is
sought. Any waiver or relinquishment of any right or power hereunder at any one
or more times shall not be deemed a waiver or relinquishment of such right or
power at any other time or times.
SECTION 21. COUNTERPARTS
This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same Agreement.
SECTION 22. GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with the federal laws of the United States and, to the extent that
federal law is inapplicable, in accordance with the laws of the State of New
York applicable to contracts entered into and to be performed entirely within
the State of New York.
PAGE 14 OF 15
SECTION 23. HEADINGS AND CONSTRUCTION
The headings of sections in this Agreement are for the convenience of
reference only and are not intended to qualify the meaning of any section. Any
reference to a section number shall refer to a section of this Agreement, unless
otherwise stated.
SECTION 24. ENTIRE AGREEMENT; MODIFICATIONS
This instrument contains the entire agreement of the parties relating to
the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof. No modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
SECTION 25. NON-DUPLICATION
In the event that Xx. Xxxxxxxx performs services for the Company, the Bank
or an other direct or indirect subsidiary of the Company or the Bank, any
compensation or benefits provided to Xx. Xxxxxxxx by such other employer shall
be applied to offset the obligations of the Company and the Bank hereunder, it
being intended that this Agreement set forth the aggregate compensation and
benefits payable to Xx. Xxxxxxxx for all services to the Company, the Bank, and
all of its direct or indirect subsidiaries.
IN WITNESS WHEREOF, the Company and the Bank have caused this Agreement to
be executed by their duly authorized officers and Xx. Xxxxxxxx has hereunto set
his hand, all as of the day and year first above written.
/s/ XXXXXX X. XXXXXXXX
--------------------------------------
XXXXXX X. XXXXXXXX
ATTEST: U.S.B. HOLDING CO., INC.
By /s/ XXXXXXX X. FURY By /s/ XXXXXX X. XXXXX
---------------------------------- ----------------------------------
Secretary Name: Xxxxxx X. Xxxxx
Title: Chairman of the Board,
President and Chief
Executive Officer
UNION STATE BANK
By /s/ XXXXXXX X. FURY By /s/ XXXXXX X. XXXXX
---------------------------------- ----------------------------------
Secretary Name: Xxxxxx X. Xxxxx
Title: Chairman of the Board,
President and Chief
Executive Officer
PAGE 15 OF 15
