EXHIBIT 10 (iv) (F)
CHANGE IN CONTROL SEVERANCE AND RETENTION
AGREEMENT
This
CHANGE IN CONTROL SEVERANCE AND RETENTION AGREEMENT (as modified,
extended or supplemented from time to time, this “
Agreement ”) is entered into as of September 7, 2006
by and between Sterling Bancorp, a New York corporation (the
“ Company ”), and ______________,
_______________(“ Executive ”).
W I T N E S
S E T H :
WHEREAS,
the Company considers the establishment and maintenance of a sound
and vital management of the Company and each Subsidiary (as defined
in Section 11) to be essential to protecting and enhancing the best
interests of the Company and its shareholders;
WHEREAS,
the Company recognizes that, as is the case with many publicly held
corporations, the possibility of a change in control may arise and
that such possibility may result in the departure or distraction of
management personnel to the detriment of the Company and its
shareholders;
WHEREAS,
the Board (as defined in Section 1 of Appendix A) has
determined that it is in the best interests of the Company and its
shareholders to secure Executive’s continued services and to
ensure Executive’s continued dedication to his duties in the
event of any threat or occurrence of a Change in Control (as
defined in Section 3 of Appendix A) of the Company;
WHEREAS,
in consideration of the protections afforded Executive by this
Agreement, the Board has further determined to require Executive to
agree to certain restrictive covenants, which shall apply
irrespective of whether a Change in Control occurs; and
WHEREAS,
the Board has authorized the Company to enter into this
Agreement.
NOW,
THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained, the Company and
Executive hereby agree as follows:
1.
Definitions . As used in this Agreement and unless otherwise
defined herein, capitalized terms will have the respective meanings
set forth in Appendix A.
2.
Obligation of Executive . In the event of a tender or
exchange offer, proxy contest or the execution of any agreement
which, if consummated, would constitute a Change in Control,
Executive agrees not to voluntarily leave the employ of the
Company, other than as a result of Disability, Retirement or an
event which would constitute Good Reason if a Change in Control had
occurred, until the Change in Control occurs or, if earlier, such
tender or exchange offer, proxy contest or agreement is terminated
or abandoned.
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EXHIBIT 10 (iv) (F)
3.
Term of Agreement .
(a)
This Agreement shall be effective on the date hereof and shall
continue in effect until the Company shall have given one (1) year
written notice of cancellation; provided , that,
notwithstanding the delivery of any such notice, this Agreement
shall continue in effect for a period of one (1) year after a
Change in Control, if such Change in Control shall have occurred
during the term of this Agreement.
(b)
If, prior to a Change in Control; (1) Executive’s
employment is terminated for reasons that would have constituted a
Qualifying Termination if they had occurred following a Change in
Control; (2) Executive reasonably demonstrates (or the Company
agrees) that such termination (or Good Reason event) was at the
request of a third party who had indicated an intention or taken
steps reasonably calculated to effect a Change in Control; and
(3) a Change in Control involving such third party (or a party
competing with such third party to effectuate a Change in Control)
does occur, then (A) for purposes of this Agreement,
the date immediately prior to the date of such termination of
employment or event constituting Good Reason shall be treated as a
Change in Control and (B) for purposes of determining the
timing of payments and benefits to Executive under Section 4, the
date of the actual Change in Control shall be treated as
Executive’s Date of Termination.
4.
Payments Upon Termination of Employment . (a) If during the
Termination Period the employment of Executive shall terminate
pursuant to a Qualifying Termination, then the Company shall
provide to Executive:
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(1)
Within ten (10) days following the Date of Termination a lump-sum
cash amount equal to the sum of (A) Executive’s base salary
through the Date of Termination and any bonus amounts which have
become payable, to the extent not previously paid or deferred, plus
(B) any accrued vacation pay, to the extent not previously paid;
plus
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(2)
Subject to Section 4(c) below, a cash severance amount equal to one
(1) times Executive’s highest annual rate of base salary
during the 12-month period immediately prior to Executive’s
Date of Termination, paid in equal installments over the one-year
period commencing with the first regular payroll date following the
Date of Termination in accordance with the Company’s normal
payroll practices; provided that, if necessary to avoid tax
penalties under Section 409A of the Internal Revenue Code of 1986,
as amended, the commencement of such payments shall be delayed
until the first regular payroll date which occurs more than six
months following the Date of Termination, with the first of such
payments including all payments which would have been made during
the period of such delay without regard thereto, without
interest.
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(b)
If during the Termination Period the employment of Executive shall
terminate other than by reason of a Qualifying Termination, then
the Company shall pay to Executive within thirty (30) days
following the Date of Termination, a lump-sum cash amount equal to
the sum of (1) Executive’s base salary through the Date of
Termination and any bonus amounts which have become payable, to the
extent not previously paid or deferred, and (2) any accrued
vacation pay, to the extent not previously paid.
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EXHIBIT 10 (iv) (F)
(c)
Executive acknowledges and agrees that any and all payments to
which Executive may become entitled under Section 4(a)(2) above are
conditioned upon and subject to Executive’s execution of, and
not having revoked within any applicable revocation period, a
general release and waiver, in such reasonable and customary form
as shall be prepared by the Company, of all claims Executive may
have against the Company, any Subsidiary and their respective
directors, officers and affiliates, except as to (i) matters
covered by provisions of this Agreement that expressly survive the
termination of this Agreement, (ii) rights to indemnification and
insurance under the Charter, By-Laws and directors and officers
insurance policies maintained by the Company or any Subsidiary and
(iii) rights to which Executive is entitled by virtue of his
participation in the employee benefit plans, policies and
arrangements of the Company or any Subsidiary.
5.
Retention Bonus . If Executive remains employed through the
Termination Period, he shall receive a lump sum payment of the
Retention Bonus within ten (10) days following the end of the
Termination Period. For the avoidance of doubt, the Retention Bonus
and the severance described in Section 4(a)(2) of this Agreement
shall be mutually exclusive, i.e., Executive may become entitled to
one or the other of those payments, but not both.
6.
Withholding Taxes . The Company may withhold from all
payments due to Executive (or his beneficiary or estate) hereunder
all taxes which, by applicable federal, state, local or other law,
the Company is required to withhold therefrom.
7.
Scope of Agreement . Nothing in this Agreement shall be
deemed to entitle Executive to continued employment with the
Company or any Subsidiary, and if Executive’s employment with
the Company shall terminate prior to a Change in Control, Executive
shall have no further rights under this Agreement; provided,
however , that any termination of Executive’s employment
during the Termination Period shall be subject to all of the
provisions of this Agreement.
8.
Successors; Binding Agreement . (a) This Agreement shall not
be terminated by any reorganization, merger or consolidation
involving the Company (each, a “Business Combination”).
In the event of any Business Combination, the provisions of this
Agreement shall be binding upon the Person resulting from such
Business Combination (the “Surviving Person”), and the
Surviving Person shall be treated as the Company
hereunder.
(b)
This Agreement shall inure to the benefit of and be enforceable by
Executive’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If Executive shall die while any amounts would be payable
to Executive hereunder had Executive continued to live, all such
amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to such person or
persons appointed in writing by Executive to receive such amounts
or, if no person is so appointed, to Executive’s
estate.
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EXHIBIT 10 (iv) (F)
9.
Notice . For purposes of this Agreement all notices and
other communications required or permitted hereunder shall be in
writing and shall be deemed to have been duly given (1) on the date
of delivery if delivered personally or by telefacsimile upon
confirmation of receipt, (2) on the first business day following
the date of dispatch if delivered by a recognized next-day courier
service or (3) five days after deposit in the United States mail,
certified and return receipt requested, postage prepaid. All such
notices and communications shall be delivered as set forth
below.
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If to Executive, to the home
address of Executive
last appearing in the Company’s records.
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If to the Company:
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Sterling National Bank
650 Fifth Avenue, Fourth Floor
New York, N.Y. 10019
Attn: President
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with a copy addressed to the
attention of the General Counsel/Chief Legal Officer of the Company
at the above address.
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or to such other address as
either party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall
be effective only upon receipt.
10.
Full Settlement . In the event of a Qualifying Termination,
the Company’s obligation to make any payments provided for in
this Agreement and otherwise to perform its obligations hereunder
shall be in lieu and in full settlement of all other severance
payments to Executive under any other severance or employment
agreement between Executive and the Company or any Subsidiary. The
Company’s obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment defense or other claim, right or
action which the Company or any Subsidiary may have against
Executive or others. In no event shall Executive be obligated to
seek other employment or take other action by way of mitigation of
the amounts payable to Executive under any of the provisions of
this Agreement and such amounts shall not be reduced whether or not
Executive obtains other employment.
11.
Employment with Subsidiaries . Employment with and services
for the Company for purposes of this Agreement shall include
employment with and services for any Subsidiary.
12.
Restrictive Covenants .
(a)
Non-Solicitation . Executive further agrees that for one (1)
year following the Date of Termination (whether prior to or
following a Change in Control) or the date of the last payment
under Section 4 (a) (2), whichever is later, Executive will not
directly or indirectly (i) solicit or hire or encourage the
solicitation or hiring of any person who was an employee of the
Company or any Subsidiary at any time on or after the Date of
Termination (unless more than six (6) months shall have elapsed
between the last day of such person’s employment by the
Company and any Subsidiary and the first date of such solicitation
or hiring), (ii) induce or attempt to induce any employee of the
Company or any Subsidiary to leave the employ thereof or in any way
interfere with the relationship between the Company or any
Subsidiary and any employee thereof, or (iii) solicit or encourage
the solicitation of any entity or person who was a customer or
prospective customer of the Company or any Subsidiary for the
benefit of Executive or any other entity that engages in any
business in which at the Date of Termination the Company or any
Subsidiary was engaged, or in which any of them had taken
demonstrable steps to become engaged, or in any way interfere with
any relationship between the Company or any Subsidiary and any
customer or prospective customer of the Company or any
Subsidiary.
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EXHIBIT 10 (iv) (F)
(b)
Non-Disclosure of Confidential Information . Executive
recognizes that the services Executive performs for the Company and
its affiliates are special, unique and extraordinary in that
Executive may acquire confidential information, trade secrets or
other competitive information concerning the operations of the
Company and its affiliates, the use or disclosure of which could
cause the Company and its affiliates substantial loss and damages
which could not be readily calculated, and for which no remedy at
law would be adequate. Accordingly, Executive agrees that Executive
will not at any time during Executive’s employment with the
Company or any Subsidiary or thereafter, except in performance of
Executive’s obligations thereto, disclose, either directly or
indirectly, any Confidential Information (as hereinafter defined)
that Executive may learn by reason of his association with the
Company and its affiliates. The term “Confidential
Information” shall mean any past, present or future
confidential or secret plans, programs, documents, agreements,
internal management reports, financial information or other
material relating to the business, strategies, services or
activities of the Company and its affiliates, including, without
limitation, information with respect to the Company’s and its
affiliates’ operations, processes, products, inventions,
business practices, finances, principals, vendors, suppliers,
customers, potential customers, marketing methods, costs, prices,
contractual relationships (including leases), regulatory status,
compensation paid to employees or other term
