AMENDED AND RESTATED CHANGE OF CONTROL EMPLOYMENT AGREEMENT
Exhibit 99.1
CHANGE
OF
CONTROL
EMPLOYMENT
AGREEMENT
AGREEMENT
by and between State Bancorp, Inc., a New York corporation (the "Company")
and
Xxxxxx X. Xxxxxxxx, Xx. (the "Executive"), dated as of October 3,
2006.
The
Board
of Directors of the Company (the "Board"), has determined that it is in the
best
interests of the Company and its shareholders to assure that the Company will
have the continued dedication of the Executive, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below) of the Company.
The Board believes it is imperative to diminish the inevitable distraction
of
the Executive by virtue of the personal uncertainties and risks created by
a
pending or threatened Change of Control and to encourage the Executive's full
attention and dedication to the Company currently and in the event of any
threatened or pending Change of Control, and to provide the Executive with
compensation and benefits arrangements upon a Change of Control which ensure
that the compensation and benefits expectations of the Executive will be
satisfied and which are competitive with those of other corporations. Therefore,
in order to accomplish these objectives, the Board has caused the Company to
enter into this Agreement.
NOW,
THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1.
Certain
Definitions.
(a) The
"Effective Date" shall mean the first date during the Change of Control Period
(as defined in Section 1(b)) on which a Change of Control (as defined in Section
2) occurs. Anything in this Agreement to the contrary notwithstanding, if a
Change of Control occurs and if the Executive's employment with the Company
is
terminated prior to the date on which the Change of Control occurs, and if
it is
reasonably demonstrated by the Executive that such termination of employment
(i)
was at the request of a third party who has taken steps reasonably calculated
to
effect a Change of Control or (ii) otherwise arose in connection with or
anticipation of a Change of Control, then for all purposes of this Agreement
the
"Effective Date" shall mean the date immediately prior to the date of such
termination of employment.
(b)
The
"Change of Control Period" shall mean the period commencing on the date hereof
and ending on the third anniversary of the date hereof; provided, however,
that
commencing on the date one year after the date hereof, and on each annual
anniversary of such date (such date and each annual anniversary thereof shall
be
hereinafter referred to as the "Renewal Date"), unless previously terminated,
the Change of Control Period shall be automatically extended so as to terminate
three years from such Renewal Date, unless at least 60 days prior to the Renewal
Date the Company shall give notice to the Executive that the Change of Control
Period shall not be so extended.
2.
Change
of Control.
For the
purpose of this Agreement, a "Change of Control" shall mean a
change
in the ownership or effective control of the Company or State Bank of Long
Island (the “Bank”) or a change in the ownership of a substantial portion of the
assets of the Company or State Bank of Long Island within the meaning of
regulations implementing Section 409A(a)(2)(A)(v) of the Internal Revenue Code
(the “Code”).:
3.
Employment
Period.
The
Company hereby agrees to continue the Executive in its employ, and the Executive
hereby agrees to remain in the employ of the Company subject to the terms and
conditions of this Agreement, for the period commencing on the Effective Date
and ending on the third anniversary of such date (the "Employment
Period").
4.
Terms
of Employment.
(a)
Position and Duties. (i) During the Employment Period, (A) the Executive's
position (including status, offices, titles and reporting requirements),
authority, duties and responsibilities shall be at least commensurate in all
material respects with the most significant of those held, exercised and
assigned to the Executive at any time during the 120-day period immediately
preceding the Effective Date and (B) the Executive's services shall be performed
at the location where the Executive was employed immediately preceding the
Effective Date or any office or location less than 10 miles from such
location.
(ii)
During the Employment Period, and excluding any periods of vacation and sick
leave to which the Executive is entitled, the Executive agrees to devote
reasonable attention and time during normal business hours to the business
and
affairs of the Company and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, to use the Executive's
reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a violation
of
this Agreement for the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments, so long
as such activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the extent that
any such activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective Date shall
not
thereafter be deemed to interfere with the performance of the Executive's
responsibilities to the Company.
(b)
Compensation. (i) Base Salary. During the Employment Period, the Executive
shall
receive an annual base salary ("Annual Base Salary"), which shall be paid at
a
monthly rate, at least equal to twelve times the highest monthly base salary
paid or payable, including any base salary which has been earned but deferred,
to the Executive by the Company and its affiliated companies in respect of
the
twelve-month period immediately preceding the month in which the Effective
Date
occurs. During the Employment Period, the Annual Base Salary shall be reviewed
no more than 12 months after the last salary increase awarded to the Executive
prior to the Effective Date and thereafter at least annually. Any increase
in
Annual Base Salary shall not serve to limit or reduce any other obligation
to
the Executive under this Agreement. Annual Base Salary shall not be reduced
after any such increase and the term Annual Base Salary as utilized in this
Agreement shall refer to Annual Base Salary as so increased. As used in this
Agreement, the term "affiliated companies" shall include any company controlled
by, controlling or under common control with the Company.
(ii)
Annual Bonus. In addition to Annual Base Salary, the Executive shall be awarded,
for each fiscal year ending during the Employment Period, an annual bonus (the
"Annual Bonus") in cash at least equal to the Executive's highest bonus for
the
last three full fiscal years prior to the Effective Date (annualized in the
event that the Executive was not employed by the Company for the whole of such
fiscal year) (the "Recent Annual Bonus"). Each such Annual Bonus shall be paid
no later than the end of the third month of the fiscal year next following
the
fiscal year for which the Annual Bonus is awarded, unless the Executive shall
elect to defer the receipt of such Annual Bonus.
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(iii)
Incentive, Savings and Retirement Plans. During the Employment Period, the
Executive shall be entitled to participate in all incentive, savings and
retirement plans, practices, policies and programs applicable generally to
other
peer executives of the Company and its affiliated companies, but in no event
shall such plans, practices, policies and programs provide the Executive with
incentive opportunities (measured with respect to both regular and special
incentive opportunities, to the extent, if any, that such distinction is
applicable), savings opportunities and retirement benefit opportunities, in
each
case, less favorable, in the aggregate, than the most favorable of those
provided by the Company and its affiliated companies for the Executive under
such plans, practices, policies and programs as in effect at any time during
the
120-day period immediately preceding the Effective Date or if more favorable
to
the Executive, those provided generally at any time after the Effective Date
to
other peer executives of the Company and its affiliated companies.
(iv)
Welfare Benefit Plans. During the Employment Period, the Executive and/or the
Executive's family, as the case may be, shall be eligible for participation
in
and shall receive all benefits under welfare benefit plans, practices, policies
and programs provided by the Company and its affiliated companies (including,
without limitation, medical, prescription, dental, disability, salary
continuance, employee life, group life, accidental death and travel accident
insurance plans and programs) to the extent applicable generally to other peer
executives of the Company and its affiliated companies, but in no event shall
such plans, practices, policies and programs provide the Executive with benefits
which are less favorable, in the aggregate, than the most favorable of such
plans, practices, policies and programs in effect for the Executive at any
time
during the 120-day period immediately preceding the Effective Date or, if more
favorable to the Executive, those provided generally at any time after the
Effective Date to other peer executives of the Company and its affiliated
companies.
(v)
Expenses. During the Employment Period, the Executive shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred by the
Executive in accordance with the most favorable policies, practices and
procedures of the Company and its affiliated companies in effect for the
Executive at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect generally
at
any time thereafter with respect to other peer executives of the Company and
its
affiliated companies.
(vi)
Fringe Benefits. During the Employment Period, the Executive shall be entitled
to fringe benefits, including, without limitation, tax and financial planning
services, payment of club dues, and, if applicable, use of an automobile and
payment of related expenses, in accordance with the most favorable plans,
practices, programs and policies of the Company and its affiliated companies
in
effect for the Executive at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other peer executives
of
the Company and its affiliated companies.
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(vii)
Office and Support Staff. During the Employment Period, the Executive shall
be
entitled to an office or offices of a size and with furnishings and other
appointments, and to exclusive personal secretarial and other assistance, at
least equal to the most favorable of the foregoing provided to the Executive
by
the Company and its affiliated companies at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to the Executive,
as provided generally at any time thereafter with respect to other peer
executives of the Company and its affiliated companies.
(viii)
Vacation. During the Employment Period, the Executive shall be entitled to
paid
vacation in accordance with the most favorable plans, policies, programs and
practices of the Company and its affiliated companies as in effect for the
Executive at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect generally
at
any time thereafter with respect to other peer executives of the Company and
its
affiliated companies.
(ix)
Equity Compensation Awards. On the Effective Date, all awards of stock options
and stock appreciation rights previously granted to the Executive shall become
fully vested and immediately exercisable, all restrictions on shares of
restricted stock previously awarded to the Executive shall immediately lapse
and
all performance based equity compensation awards previously made to the
Executive shall be deemed fully earned as if all performance goals had been
fully attained and the performance period ended on the Effective Date. In the
event of any conflict between the terms of this Agreement and the terms of
any
award agreement, the terms of this Agreement shall govern.
5.
Termination
of Employment.
(a)
Death or Disability. The Executive's employment shall terminate automatically
upon the Executive's death during the Employment Period. If the Company
determines in good faith that the Disability of the Executive has occurred
during the Employment Period (pursuant to the definition of Disability set
forth
below), it may give to the Executive written notice in accordance with Section
12(b) of this Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the 30th
day
after receipt of such notice by the Executive (the "Disability Effective Date"),
provided that, within the 30 days after such receipt, the Executive shall not
have returned to full-time performance of the Executive's duties. For purposes
of this Agreement, "Disability" shall mean the absence of the Executive from
the
Executive's duties with the Company on a full-time basis for 180 consecutive
business days as a result of incapacity due to mental or physical illness which
is determined to be total and permanent by a physician selected by the Company
or its insurers and acceptable to the Executive or the Executive's legal
representative.
(b)
Cause. The Company may terminate the Executive's employment during the
Employment Period for Cause. For purposes of this Agreement, "Cause" shall
mean:
(i)
fraud, misappropriation or intentional material damage to the property or
business of the Company, or
(ii)
commission of a felony as determined by a court of competent jurisdiction,
whose
determination is final and non-appealable.
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For
purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "intentional" unless it is done, or omitted
to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution
duly
adopted by the Board or upon the instructions of the Chief Executive Officer
or
a senior officer of the Company or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by
the
Executive in good faith and in the best interests of the Company. The cessation
of employment of the Executive shall not be deemed to be for Cause unless and
until there shall have been delivered to the Executive a copy of a resolution
duly adopted by the affirmative vote of not less than three-quarters of the
entire membership of the Board at a meeting of the Board called and held for
such purpose (after reasonable notice is provided to the Executive and the
Executive is given an opportunity, together with counsel, to be heard before
the
Board), finding that, in the good faith opinion of the Board, the Executive
is
guilty of the conduct described in subparagraph (i) or (ii) above, and
specifying the particulars thereof in detail.
(c)
Good
Reason. The Executive's employment may be terminated by the Executive for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean:
(i)
without the express written consent of the Executive, the assignment to the
Executive of any duties inconsistent in any respect with the Executive's
position (including status, offices, titles and reporting requirements),
authority, duties or responsibilities as contemplated by Section 4(a) of this
Agreement, or any other action by the Company which results in a diminution
in
such position, authority, duties or responsibilities, excluding for this purpose
an isolated, insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Company promptly after receipt of notice thereof given
by the Executive;
(ii)
any
failure by the Company to comply with any of the provisions of Section 4(b)
of
this Agreement, other than an isolated, insubstantial and inadvertent failure
not occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive;
(iii)
without the express written consent of the Executive, the Company's requiring
the Executive to be based at any office or location other than as provided
in
Section 4(a)(i)(B) hereof or the Company's requiring the Executive to travel
on
Company business to a substantially greater extent than required during the
one-year period prior to the Effective Date;
(iv)
any
purported termination by the Company of the Executive's employment otherwise
than as expressly permitted by this Agreement; or
(v)
any
failure by the Company to comply with and satisfy Section 11(c) of this
Agreement.
For
purposes of this Section 5(c), any good faith determination of "Good Reason"
made by the Executive shall be conclusive. Anything in this Agreement to the
contrary notwithstanding, a termination by the Executive for any reason during
the 30-day period immediately following the first anniversary of the Effective
Date shall be deemed to be a termination for Good Reason for all purposes of
this Agreement.
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(d)
Notice of Termination. Any termination by the Company for Cause, or by the
Executive for Good Reason, shall be communicated by Notice of Termination to
the
other party hereto given in accordance with Section 12(b) of this Agreement.
For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than thirty days after the
giving of such notice). The failure by the Executive or the Company to set
forth
in the Notice of Termination any fact or circumstance which contributes to
a
showing of Good Reason or Cause shall not waive any right of the Executive
or
the Company, respectively, hereunder or preclude the Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
(e)
Date
of Termination. "Date of Termination" means (i) if the Executive's employment
is
terminated by the Company for Cause, or by the Executive for Good Reason, the
date of receipt of the Notice of Termination or any later date specified
therein, as the case may be, (ii) if the Executive's employment is terminated
by
the Company other than for Cause or Disability, the date on which the Company
notifies the Executive of such termination and (iii) if the Executive's
employment is terminated by reason of death or Disability, the date of death
of
the Executive or the Disability Effective Date, as the case may be.
6.
Obligations
of the Company upon Termination.
(a)
Good Reason; Other Than for Cause, Death or Disability. If, during the
Employment Period, the Company shall terminate the Executive's employment other
than for Cause, Death or Disability or the Executive shall terminate employment
for Good Reason:
(i)
the
Company shall pay to the Executive in a lump sum in cash within 30 days after
the Date of Termination the aggregate of the following amounts:
A.
the
sum of (1) the Executive's Annual Base Salary through the Date of Termination
to
the extent not theretofore paid, (2) the product of (x) the higher of (I) the
Recent Annual Bonus and (II) the Annual Bonus paid or payable, including any
bonus or portion thereof which has been earned but deferred (and annualized
for
any fiscal year consisting of less than twelve full months or during which
the
Executive was employed for less than twelve full months), for the most recently
completed fiscal year during the Employment Period, if any (such higher amount
being referred to as the "Highest Annual Bonus") and (y) a fraction, the
numerator of which is the number of days in the current fiscal year through
the
Date of Termination, and the denominator of which is 365 and (3) any
compensation previously deferred by the Executive (together with any accrued
interest or earnings thereon) and any accrued vacation pay, in each case to
the
extent not theretofore paid (the sum of the amounts described in clauses (1),
(2), and (3) shall be hereinafter referred to as the "Accrued Obligations");
and
B.
the
amount equal to three (3) times the Executive's average annual compensation
for
the five most recent taxable years that the Executive has been employed by
the
Company or any of its affiliated companies. Such annual compensation shall
include base salary and any other income, whether or not receipt of such
compensation has been deferred, including, but not limited to, amounts related
to the granting, vesting or exercise of restricted stock, stock option or other
equity-based compensation awards, bonuses, cash incentive awards, pension and
profit sharing plan contributions or benefits (whether or not taxable), Employee
Stock Ownership Plan (“ESOP”) contributions and earnings, earnings on deferred
compensation balances, and fringe benefits paid to the Executive or paid for
the
Executive's benefit during any such year; and
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(ii)
for
three years after the Executive's Date of Termination, or such longer period
as
may be provided by the terms of the appropriate plan, program, practice or
policy, the Company shall continue benefits to the Executive and/or the
Executive's family (collectively, the “Other Benefits”) at least equal to those
which would have been provided to them in accordance with the plans, programs,
practices and policies described in Section 4(b)(iv) of this Agreement if the
Executive's employment had not been terminated or, if more favorable to the
Executive, as in effect generally at any time thereafter with respect to other
peer executives of the Company and its affiliated companies and their families,
provided, however, that if the Executive becomes reemployed with another
employer and is eligible to receive medical or other welfare benefits under
another employer-provided plan, the medical and other welfare benefits described
herein shall be secondary to those provided under such other plan during such
applicable period of eligibility, and for purposes of determining eligibility
(but not the time of commencement of benefits) of the Executive for retiree
benefits pursuant to such plans, practices, programs and policies, the Executive
shall be considered to have remained employed until three years after the Date
of Termination and to have retired on the last day of such period;
(iii)
without limiting the generality of clause (ii) above, Other Benefits shall
include and the Company shall provide the Executive with coverage under the
Company's group life insurance as then in effect, or equivalent benefits, at
no
cost to the Executive, for three years following the Date of Termination at
a
level determined on the basis of three times the Executive's Annual Base Salary,
and the Executive's participation in the Company's Hospital/Medical/Surgical
insurance plan shall be continued on the same basis as prior to the Date of
Termination, or equivalent benefits shall be provided by the Company, at no
direct cost to the Executive for a period of three years from the Date of
Termination; and
(iv)
the
Company shall, at its sole expense as incurred, provide the Executive with
outplacement services the scope and provider of which shall be selected by
the
Executive in the Executive's sole discretion.
(b)
Death. If the Executive's employment is terminated by reason of the Executive's
death during the Employment Period, this Agreement shall terminate without
further obligations to the Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits. Accrued Obligations shall be paid to the
Executive's estate or beneficiary, as applicable, in a lump sum in cash within
30 days of the Date of Termination. With respect to the provision of Other
Benefits, the term Other Benefits as utilized in this Section 6(b) shall
include, without limitation, and the Executive's estate and/or beneficiaries
shall be entitled to receive, benefits at least equal to the most favorable
benefits provided by the Company and affiliated companies to the estates and
beneficiaries of peer executives of the Company and such affiliated companies
under such plans, programs, practices and policies relating to death benefits,
if any, as in effect with respect to other peer executives and their
beneficiaries at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive's estate and/or the
Executive's beneficiaries, as in effect on the date of the Executive's death
with respect to other peer executives of the Company and its affiliated
companies and their beneficiaries.
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(c)
Disability. If the Executive's employment is terminated by reason of the
Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of Accrued Obligations and the timely payment or provision of Other Benefits.
Accrued Obligations shall be paid to the Executive in a lump sum in cash within
30 days of the Date of Termination. With respect to the provision of Other
Benefits, the term Other Benefits as utilized in this Section 6(c) shall
include, and the Executive shall be entitled after the Disability Effective
Date
to receive, disability and other benefits at least equal to the most favorable
of those generally provided by the Company and its affiliated companies to
disabled executives and/or their families in accordance with such plans,
programs, practices and policies relating to disability, if any, as in effect
generally with respect to other peer executives and their families at any time
during the 120-day period immediately preceding the Effective Date or, if more
favorable to the Executive and/or the Executive's family, as in effect at any
time thereafter generally with respect to other peer executives of the Company
and its affiliated companies and their families.
(d)
Cause; Other than for Good Reason. If the Executive's employment shall be
terminated for Cause during the Employment Period, this Agreement shall
terminate without further obligations to the Executive other than the obligation
to pay to the Executive (x) the Annual Base Salary through the Date of
Termination, (y) the amount of any compensation previously deferred by the
Executive, and (z) Other Benefits, in each case to the extent theretofore
unpaid. If the Executive voluntarily terminates employment during the Employment
Period, excluding a termination for Good Reason, this Agreement shall terminate
without further obligations to the Executive, other than for Accrued Obligations
and the timely payment or provision of Other Benefits. In such case, all Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30
days
of the Date of Termination.
(e)
Payment
Schedule.
Notwithstanding anything to the contrary in this
Agreement, to the extent required to comply with Section 409A(a)(2)(B) of the
Code, if the Executive is deemed to be a 'specified employee' for purposes
of
Section 409A(a)(2)(B)
of the Code, payments due to him that would otherwise have been payable at
any
time during the six-month period immediately following separation from service
(as defined for purposes of Section 409A of the Code) shall not be paid prior
to, and shall instead be payable in a lump sum as soon as practicable following,
the expiration of such six-month period.
(f)
Payment
Cap.
Notwithstanding anything to the contrary in this Agreement, if any payment
under
this Section 6, either alone or together with other payments and benefits which
the Executive has the right to receive from the Company and its affiliated
companies, would constitute a “parachute payment” under Section 280G of the
Code, payments shall be reduced by the amount, if any, which is the minimum
necessary to result in no portion of such payments being non-deductible to
the
Company or its affiliated companies pursuant to Section 280G of the Code and
subject to the excise tax imposed under Section 4999 of the Code. The allocation
of the reduction required hereby among such payments shall be determined by
the
Executive.
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7.
Non-exclusivity
of Rights.
Nothing
in this Agreement shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided by the Company
or any of its affiliated companies and for which the Executive may qualify,
nor,
subject to Section 12(f), shall anything herein limit or otherwise affect such
rights as the Executive may have under any contract or agreement with the
Company or any of its affiliated companies. Amounts which are vested benefits
or
which the Executive is otherwise entitled to receive under any plan, policy,
practice or program of or any contract or agreement with the Company or any
of
its affiliated companies at or subsequent to the Date of Termination shall
be
payable in accordance with such plan, policy, practice or program or contract
or
agreement except as explicitly modified by this Agreement.
8.
Full
Settlement; Legal Fees.
The
Company's obligation to make the payments provided for in this Agreement and
otherwise to perform its 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 the Executive or others. In no event shall the
Executive be obligated to seek other employment or take any other action by
way
of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement and except as specifically provided in Section
6(a)(ii), such amounts shall not be reduced whether or not the Executive obtains
other employment. The Company agrees to pay as incurred, to the full extent
permitted by law, all legal fees and expenses which the Executive may reasonably
incur as a result of any contest (regardless of the outcome thereof) by the
Company, the Executive or others of the validity or enforceability of, or
liability or entitlement under, any provision of this Agreement or any guarantee
of performance thereof (whether such contest is between the Company and the
Executive or between either of them and any third party, and including as a
result of any contest by the Executive about the amount of any payment pursuant
to this Agreement), plus in each case interest on any delayed payment at the
applicable Federal rate provided for in Section 7872(f)(2)(A) of the
Code.
9.
Determinations
Required under Section 280G of the Code.
All
calculations required to be made in order to determine whether payments
constitute an "excess parachute payment" within the meaning of Section 280G
of
the Code , including the assumptions to be utilized in arriving at such
determination, shall be made by Xxxxx Xxxxxx and Company LLC or such other
registered public accounting firm as may be designated by acting as the
Company’s independent auditors (the “Accounting Firm”), which shall provide
detailed supporting calculations both to the Company and the Executive within
15
business days of the receipt of demand from the Executive, or such earlier
time
as is requested by the Company. In the event that the Accounting Firm is serving
as accountant or auditor for the individual, entity or group effecting the
Change of Control, the Executive shall appoint another nationally recognized
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. Any
determination by the Accounting Firm shall be binding upon the Company and
the
Executive.
10.
Confidential
Information.
The
Executive shall hold in a fiduciary capacity for the benefit of the Company
all
secret or confidential information, knowledge or data relating to the Company
or
any of its affiliated companies, and their respective businesses, which shall
have been obtained by the Executive during the Executive's employment by the
Company or any of its affiliated companies and which shall not be or become
public knowledge (other than by acts by the Executive or representatives of
the
Executive in violation of this Agreement). After termination of the Executive's
employment with the Company, the Executive shall not, without the prior written
consent of the Company or as may otherwise be required by law or legal process,
communicate or divulge any such information, knowledge or data to anyone other
than the Company and those designated by it. In no event shall an asserted
violation of the provisions of this Section 10 constitute a basis for deferring
or withholding any amounts otherwise payable to the Executive under this
Agreement.
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11.
Successors.
(a)
This Agreement is personal to the Executive and without the prior written
consent of the Company shall not be assignable by the Executive otherwise than
by will or the laws of descent and distribution. This Agreement shall inure
to
the benefit of and be enforceable by the Executive's legal
representatives.
(b)
This
Agreement shall inure to the benefit of and be binding upon the Company and
its
successors and assigns.
(c)
The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would
be
required to perform it if no such succession had taken place.
As
used
in this Agreement, "Company" shall mean the Company as hereinbefore defined
and
any successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, or otherwise.
12.
Miscellaneous.
(a)
This Agreement shall be governed by and construed in accordance with the laws
of
the State of New York, without reference to principles of conflict of laws.
The
captions of this Agreement are not part of the provisions hereof and shall
have
no force or effect. This Agreement may not be amended or modified otherwise
than
by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(b)
All
notices and other communications hereunder shall be in writing and shall be
given by hand delivery to the other party or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If
to the
Executive: Xxxxxx
X.
Xxxxxxxx, Xx.
Xxx
Xxxx
Xxxx
Xxxxxxx,
Xxx Xxxx 00000
If
to the
Company: State
Bancorp, Inc.
Xxx
Xxxxxxx Xxxxx
Xxxxxxx,
Xxx Xxxx 00000
Attention:
General Counsel
or
to
such other address as either party shall have furnished to the other in writing
in accordance herewith. Notice and communications shall be effective when
actually received by the addressee.
10
(c)
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
(d)
The
Company may withhold from any amounts payable under this Agreement such Federal,
state, local or foreign taxes as shall be required to be withheld pursuant
to
any applicable law or regulation.
(e)
The
Executive's or the Company's failure to insist upon strict compliance with
any
provision hereof or any other provision of this Agreement or the failure to
assert any right the Executive or the Company may have hereunder, including,
without limitation, the right of the Executive to terminate employment for
Good
Reason pursuant to Section 5(c)(i)-(v) of this Agreement, shall not be deemed
to
be a waiver of such provision or right or any other provision or right of this
Agreement.
(f)
The
Executive and the Company acknowledge that, except as may otherwise be provided
under any other written agreement between the Executive and the Company, the
employment of the Executive by the Company is "at will" and, prior to the
Effective Date, the Executive's employment may be terminated by either the
Executive or the Company at any time prior to the Effective Date, in which
case
the Executive shall have no further rights under this Agreement. From and after
the Effective Date this Agreement shall supersede any other agreement between
the parties with respect to the subject matter hereof.
IN
WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused this Agreement to be executed in its name on its behalf, all as of the
day and year first above written.
________________________________
Xxxxxx
X.
Xxxxxxxx, Xx.
STATE
BANCORP, INC.
By:_________________________________
11
