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EXHIBIT 10.6
AMENDED AND RESTATED
CLIFTON SAVINGS BANK
CHANGE IN CONTROL AGREEMENT
This AGREEMENT
("Agreement") as amended and restated, is hereby entered
into as of December 17, 2008, by and between CLIFTON SAVINGS BANK
(the "Bank"),
a federally-chartered financial institution, with its principal
offices at 1433
Van Houten Avenue, Clifton, New Jersey 07015, and STEPHEN A.
HOOGERHYDE
("Executive").
WHEREAS, the Bank
and Executive entered into a change in control
agreement as of March 17, 2004; and
WHEREAS, the Bank
recognizes the substantial contributions of Executive
and wishes to protect his 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 amended and restated 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 and to
bring the
Agreement into compliance with Section 409A of the Internal Revenue
Code of
1986, as amended (the "Code"), and the regulations and guidance
issued with
respect to Section 409A of the Code.
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 March 17, 2011, plus (ii) any and
all
extensions of the initial term made pursuant to this Section 1.
(b) Commencing as of March 17, 2009, 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 his 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 his employment at any time during
the term of
this Agreement for Good Reason. For purposes of this Agreement,
"Good Reason"
shall mean the occurrence of any of the following events without
the Employee's
consent:
(i) The assignment to Executive of duties
that constitute a
material diminution of Executive's authority, duties, or
responsibilities
(including reporting requirements);
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(ii) A material diminution in
Executive's Base Salary;
(iii) Relocation of Executive to a location outside a
radius
of twenty-five (25) miles of the Bank's Clifton, New Jersey office;
or
(iv) Any other action or inaction by the Bank that
constitutes
a material breach of this Agreement;
provided, that within ninety (90) days after the initial
existence of such event, the Bank shall be given notice and an
opportunity, not
less than thirty (30) days, to effectuate a cure for such asserted
"Good Reason"
by Executive. Executive's resignation hereunder for Good Reason
shall not occur
later than one hundred fifty (150) days following the initial date
on which the
event Executive claims constitutes Good Reason occurred.
(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 him 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 him, 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.
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Executive shall not have the right to receive compensation or other
benefits for
any period after termination 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 his subsequent death, his beneficiary
or
beneficiaries, or his 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 his dependents
participated
immediately prior to the Change in Control (each being a "Welfare
Plan"),
Executive and his 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, unti
