AMENDED AND
RESTATED
TWO YEAR CHANGE OF CONTROL AGREEMENT
HUDSON CITY BANCORP,
INC.,
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AMENDED AND RESTATED
TWO-YEAR CHANGE OF CONTROL AGREEMENT
This AMENDED
AND RESTATED CHANGE OF CONTROL AGREEMENT (the
“Agreement”) is made and entered into as of
December 31, 2008 by and among HUDSON CITY SAVINGS BANK
, a savings bank organized and operating under the federal laws of
the United States and having an office at West 80 Century Road,
Paramus, New Jersey 07652-1473 (the “Bank”), HUDSON
CITY BANCORP, INC. , a business corporation organized and
existing under the laws of the State of Delaware and having an
office at West 80 Century Road, Paramus, New Jersey 07652-1473 (the
“Company”) and
, an individual residing at
(the “Officer”).
The
Officer currently serves as an officer of the Bank, a wholly-owned
subsidiary of the Company. The Officer, the Bank and the Company
are currently parties to a Change of Control Agreement, made and
entered into as of
(such date, the “Initial Effective Date” and such
agreement, the “Prior Agreement.”). The Board of
Directors of the Bank and the Board of Directors of the Company
concluded that it is in the best interests of the Bank, the Company
and their shareholders to establish a working environment for the
Officer which minimizes the personal distractions that might result
from possible business combinations in which the Company or the
Bank might be involved. The Bank and the Company decided to provide
the Officer with assurance that his compensation will be continued
for a minimum period of two (2) years following termination of
employment (the “Assurance Period”) if his employment
terminates under specified circumstances related to a business
combination. The Board of Directors of the Bank and the Board of
Directors of the Company decided to formalize this assurance by
entering into the Prior Agreement with the Officer. The Board of
Directors of the Bank and the Board of Directors of the Company
have concluded that it is in the best interests of the Bank and the
Company to amend and restate the Prior Agreement pursuant to
Section 18 thereof for the purpose, among others, of
compliance with the applicable requirements of section 409A of the
Internal Revenue Code of 1986 (the “Code”).
The
terms and conditions which the Bank, the Company and the Officer
have agreed to are as follows.
Section 1. Effective Date; Term; Change of Control
and Pending Change of Control Defined .
(a) This
Agreement took effect on the Initial Effective Date and shall be in
effect during the period (the “Term”) beginning on the
Initial Effective Date and ending on the first anniversary of the
date on which the Bank notifies the Officer of its intent to
discontinue the Agreement (the “Initial Expiration
Date”) or, if later, the second anniversary of the latest
Change of
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Control or
Pending Change of Control, as defined below, that occurs after the
Initial Effective Date and before the Initial Expiration
Date.
(b) For
all purposes of this Agreement, a “Change of Control”
shall be deemed to have occurred upon the happening of any of the
following events:
(i)
the consummation of a reorganization, merger or consolidation of
the Company 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 Securities
Exchange Act of 1934, as amended (“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; 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% of
the securities entitled to vote generally in the election of
directors of the Company;
(ii)
the acquisition of all or substantially all of the assets of the
Company or beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 25% or more
of the outstanding securities of the Company entitled to vote
generally in the election of directors by any person or by any
persons acting in concert;
(iii)
a complete liquidation or dissolution of the Company;
(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 do not belong to any of the following groups:
(A)
individuals who were members of the Board of Directors of the
Company on the Initial Effective Date; or
(B)
individuals who first became members of the Board of Directors of
the Company after the Initial Effective Date either:
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(1)
upon election to serve as a member of the Board of Directors of the
Company by affirmative vote of three-quarters of the members of
such board, or of a nominating committee thereof, in office at the
time of such first election; or
(2)
upon election by the shareholders of the Board of Directors of the
Company to serve as a member of such board, but only if nominated
for election by affirmative vote of three-quarters of the members
of the Board of Directors of the Company, 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 Directors of the Company;
or
(v)
any event which would be described in section l (b)(i), (ii),
(iii) or (iv) if the term “Bank” were substituted
for the term “Company” therein.
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 any subsidiary of either of them, or by any employee
benefit plan maintained by any of them. For purposes of this
section 1(b), the term “person” shall have the meaning
assigned to it under sections 13(d)(3) or 14(d)(2) of the Exchange
Act.
(c) For
purposes of this Agreement, a “Pending Change of
Control” shall mean: (i) the signing of a definitive
agreement for a transaction which, if consummated, would result in
a Change of Control; (ii) the commencement of a tender offer
which, if successful, would result in a Change of Control; or
(iii) the circulation of a proxy statement seeking proxies in
opposition to management in an election contest which, if
successful, would result in a Change of Control.
Section 2. Discharge Prior to a Pending Change of
Control .
The
Bank may discharge the Officer at any time prior to the occurrence
of a Pending Change of Control for any reason or for no reason. In
such event:
(a)
The Bank shall pay to the Officer (or, in the event of his death
before payment, his estate) his earned but unpaid compensation
(including, without limitation, salary and all other items which
constitute wages under applicable law) as of the date of his
termination of employment. This payment shall be made at the time
and in the manner prescribed by law applicable to the payment of
wages but in no event later than 30 days after the date of the
Officer’s termination of employment.
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(b)
The Bank shall provide the benefits, if any, due to the Officer,
his estate, surviving dependents or designated beneficiaries under
the employee benefit plans and programs and compensation plans and
programs maintained for the benefit of the officers and employees
of the Bank, including the annual and long-term bonus plans (if
any) to which the Officer is entitled under any cash-based annual
bonus or performance compensation plan in effect for the year in
which his or her termination occurs, to be paid at the same time
and on the terms and conditions (including but not limited to
achievement of performance goals) applicable under the relevant
plan. The time and manner of payment or other delivery of these
benefits and the recipients of such benefits shall be determined
according to the terms and conditions of the applicable plans and
programs.
The payments
and benefits described in sections 2(a) and (b) shall be
referred to in this Agreement as the “Standard Termination
Entitlements.”
Section 3. Termination of Employment Due to Death
.
The
Officer’s employment with the Bank shall terminate,
automatically and without any further action on the part of any
party to this Agreement, on the date of the Officer’s death.
In such event, the Bank shall pay and deliver to the
Officer’s estate and surviving dependents and beneficiaries,
as applicable, the Standard Termination Entitlements.
Section 4. Termination Due to Disability after Change
of Control or Pending Change of
Control.
The
Bank may terminate the Officer’s employment during the Term
and after the occurrence of a Change of Control or a Pending Change
of Control upon a determination, by a majority vote of the members
of the Board of Directors of the Bank, acting in reliance on the
written advice of a medical professional acceptable to it, that the
Officer is suffering from a physical or mental impairment which, at
the date of the determination, has prevented the Officer from
performing his assigned duties on a substantially full-time basis
for a period of at least one hundred and eighty (180) days
during the period of one (1) year ending with the date of the
determination or is likely to result in death or prevent the
Officer from performing his assigned duties on a substantially
full-time basis for a period of at least one hundred and eighty
(180) days during the period of one (1) year beginning
with the date of the determination. In such event:
(a)
The Bank shall pay and deliver to the Officer (or in the event of
his death before payment, to his estate and surviving dependents
and beneficiaries, as applicable) the Standard Termination
Entitlements.
(b)
In addition to the Standard Termination Entitlements, the Bank
shall continue to pay the Officer his base salary, at the annual
rate in effect for him immediately prior to the termination of his
employment, during a period ending on the earliest of: (i) the
expiration of one hundred and eighty (180) days after the date
of termination of his employment; (ii) the date on which
long-term disability insurance benefits are first payable to him
under any long-term disability insurance
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plan covering
employees of the Bank (the “LTD Eligibility Date”);
(iii) the date of his death; and (iv) the expiration of
the Assurance Period (the “Initial Continuation
Period”). If the end of the Initial Continuation Period is
neither the LTD Eligibility Date nor the date of his death, the
Bank shall continue to pay the Officer his base salary, at an
annual rate equal to sixty percent (60%) of the annual rate in
effect for him immediately prior to the termination of his
employment, during an additional period ending on the earliest of
the LTD Eligibility Date, the date of his death and the expiration
of the Assurance Period.
A termination
of employment due to disability under this section 4 shall be
effected by a notice of termination given to the Officer by the
Bank and shall take effect on the later of the effective date of
termination specified in such notice or the date on which the
notice of termination is deemed given to the Officer.
Section 5. Discharge with Cause after Change of
Control or Pending Change of Control.
(a) The
Bank may terminate the Officer’s employment with
“Cause” during the Term and after the occurrence of a
Change of Control or Pending Change of Control, but a termination
shall be deemed to have occurred with “Cause” only
if
(i)
the Board of Directors of the Bank, by majority vote of its entire
membership, determines that the Officer should be terminated
because of personal dishonesty, incompetence, willful misconduct,
breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law,
rule or regulation (other than traffic violations or similar
offenses) or final cease-and-desist order, or any material breach
of this Agreement; and
(ii)
at least forty-five (45) days prior to the vote contemplated
by section 1(b)(i), the Bank has provided the Officer with notice
of its intent to discharge the Officer for Cause, detailing with
particularity the facts and circumstances which are alleged to
constitute Cause (the “Notice of Intent to Discharge”);
and
(iii)
after the giving of the Notice of Intent to Discharge and before
the taking of the vote contemplated by section 5(a)(i), the Officer
(together with his legal counsel, if he so desires) is afforded a
reasonable opportunity to make both written and oral presentations
before the Board of Directors of the Bank for the purpose of
refuting the alleged grounds for Cause for his discharge;
and
(iv)
after the vote contemplated by section 5(a)(i), the Bank has
furnished to the Officer a notice of termination which shall
specify the effective date of his termination of employment (which
shall in no event be earlier than the date on which such notice is
deemed given) and include a copy of a resolution or resolutions
adopted by the Board of Directors of the Bank, certified by its
corporate secretary and signed by each member of the Board of
Directors voting in favor of adoption of the
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resolution(s),
authorizing the termination of the Officer’s employment with
Cause and stating with particularity the facts and circumstances
found to constitute Cause for his discharge (the “Final
Discharge Notice”).
For purposes of
this section 5, no act or failure to act, on the part of the
Officer, shall be considered “willful” unless it is
done, or omitted to be done, by the Officer in bad faith or without
reasonable belief that the Officer’s action or omission was
in the best interests of the Bank. Any act, or failure to act,
based upon authority given pursuant to a resolution duly adopted by
the Board of Directors of the Bank or based upon the written advice
of counsel for the Bank shall be conclusively presumed to be done,
or omitted to be done, by the Officer in good faith and in the best
interests of the Bank.
(b) If
the Officer is discharged with Cause during the Term and after a
Change of Control or Pending Change of Control, the Bank shall pay
and provide to him (or, in the event of his death, to his estate,
his surviving beneficiaries and his dependents) the Standard
Termination Entitlements only. Following the giving of a Notice of
Intent to Discharge, the Bank may temporarily suspend the
Officer’s duties and authority and, in such event, may also
suspend the payment of salary and other cash compensation, but not
the Officer’s participation in retirement, insurance and
other employee benefit plans. If the Officer is not discharged, or
is discharged without Cause, within forty-five (45) days after
the giving of a Notice of Intent to Discharge, payments of salary
and cash compensation shall resume, and all payments withheld
during the period of suspension shall be promptly restored. If the
Officer is discharged with Cause not later than forty-five
(45) days after the giving of the Notice of Intent to
Discharge, all payments withheld during the period of suspension
shall be deemed forfeited and shall not be included in the Standard
Termination Entitlements. If a Final Discharge Notice is given
later than forty-five (45) days, but sooner than ninety
(90) days, after the giving of the Notice of Intent to
Discharge, all payments made to the Officer during the period
beginning with the giving of the Notice of Intent to Discharge and
ending with the Officer’s discharge with Cause shall be
retained by the Officer and shall not be applied to offset the
Standard Termination Entitlements. If the Bank does not give a
Final Discharge Notice to the Officer within ninety (90) days
after giving a Notice of Intent to Discharge, the Notice of Intent
to Discharge shall be deemed withdrawn and any future action to
discharge the Officer with Cause shall require the giving of a new
Notice of Intent to Discharge.
Section 6. Discharge without Cause
.
The
Bank may discharge the Officer without Cause at any time after the
occurrence of a Change of Control or Pending Change of Control, and
in such event:
(a)
The Bank shall pay and deliver to the Officer (or in the event of
his death before payment, to his estate and surviving dependents
and beneficiaries, as applicable) the Standard Termination
Entitlements.
(b)
In addition to the Standard Termination Entitlements:
(i)
During the Assurance Period, the Bank shall provide for the Officer
and his dependents continued group life, health
(including
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hospitalization, medical and major medical),
dental, accident and long-term disability insurance benefits on
substantially the same terms and conditions (including any required
premium-sharing arrangements, co-payments and deductibles) in
effect for them immediately prior to the Officer’s
termination. The coverage provided under this section 6(b)(i) may,
at the election of the Bank, be secondary to the coverage provided
as part of the Standard Termination Entitlements and to any
employer-paid coverage provided by a subsequent employer or through
Medicare, with the result that benefits under the other coverages
will offset the coverage required by this section
6(b)(i).
(ii)
The Bank shall make a lump sum payment to the Officer (or, in the
event of his death before payment, to his estate), in an amount
equal to the estimated present value of the salary that the Officer
would have earned if he had continued working for the Bank during
the Assurance Period at the highest annual rate of salary achieved
during the period of three (3) years ending immediately prior
to the date of termination (the “Salary Severance
Payment”). The Salary Severance Payment shall be computed
using the following formula:
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