EXHIBIT 10.2(F)
HAVEN BANCORP, INC.
CHANGE IN CONTROL AGREEMENT
This AGREEMENT is made effective as of April 10, 1998, by and
between Haven Bancorp, Inc. (the "Company"), a corporation
organized under the laws of the State of Delaware, with its office
at 93-22 Jamaica Avenue, Woodhaven, New York 11421, and Mark A.
Ricca (the "Executive"). The term "Bank" refers to CFS Bank, the
wholly-owned subsidiary of the Company.
WHEREAS, the Company recognizes the substantial contribution the
Executive will make to the Company and wishes to protect his
position therewith for the period provided in this Agreement; and
WHEREAS, the Executive has been elected to, and has agreed to serve
in, the position of Senior Vice President and General Counsel for
the Company, a position of substantial responsibility;
NOW, THEREFORE, in consideration of the contribution and
responsibilities of the Executive, and upon the other terms and
conditions hereinafter provided, the parties hereto agree as
follows:
1. TERM OF AGREEMENT.
(a) The term of this Agreement shall be and remain in effect
during the period established under this Section 1 ("Term"). The
Term shall be for an initial period of three (3) years beginning on
the date of this Agreement and ending on the third anniversary of
the date of this Agreement, plus such extensions, if any, as are
provided pursuant to Section 1(b).
(b) Beginning on the date one day after the effective date of
this Agreement, the Term shall automatically be extended for one
(1) additional day each day, unless either the Company or the
Executive elects not to extend the Agreement further by giving
written notice to the other party, in which case the Term shall end
on the third anniversary of the date on which such written notice
is given. Prior to any written notice of non-renewal, the
Company's Board of Directors ("Board") will conduct a formal
performance evaluation of the Executive for purposes of determining
whether to terminate the Agreement, and the results thereof shall
be included in the minutes of the Board's meeting. Upon
termination of the Executive's employment with the Company for any
reason whatsoever, any daily extensions provided pursuant to this
Section 1(b), if not previously discontinued, shall automatically
cease.
2. PAYMENTS TO THE EXECUTIVE UPON CHANGE IN CONTROL.
(a) Upon the occurrence of a Change in Control of the Company
(as herein defined) followed at any time during the term of this
Agreement by the voluntary or involuntary termination of the
Executive's employment, other than for Cause, as defined in Section
2(c) hereof, the provisions of Section 3 shall apply.
(b) Definition of a Change in Control. A "Change in Control"
of the Bank or the Company shall mean a change in control of a
nature that: (i) would be required to be reported in response to
Item 1(a) of the current report on Form 8-K, as in effect on the
date hereof, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"); or (ii) results in a
Change in Control of the Bank or the Company within the meaning of
the Home Owners' Loan Act of 1933, as amended and the Rules and
Regulations promulgated by the Office of Thrift Supervision ("OTS")
(or its predecessor agency), as in effect on the date hereof
(provided that in applying the definition of change in control as
set forth under the rules and regulations of the OTS, the Board
shall substitute its judgment for that of the OTS); or (iii)
without limitation, such a Change in Control shall be deemed to
have occurred at such time as (A) any "person" (as the term is used
in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities or makes an offer to
purchase securities of the Bank or Company representing 20% or more
of the combined voting power of the Bank's or Company's outstanding
securities except for any securities purchased by the Bank's
employee stock ownership plan and trust; (B) individuals who
constitute the Board of Directors of the Company on the date hereof
(the "Incumbent Board") 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 three-quarters of the directors comprising the
Incumbent Board, or whose nomination for election by the Company's
stockholders was approved by the Company's Nominating Committee,
shall be, for purposes of this clause (B), considered as though he
were a member of the Incumbent Board; or (C) a plan of
reorganization, merger, consolidation or sale of all or
substantially all the assets of the Bank or Company or similar
transaction occurs in which the Bank or the Company is not the
resulting entity; or (D) a proxy statement shall be distributed
soliciting proxies from stockholders of the Company, by someone
other than the current management of the Company, seeking
stockholder approval of a plan of reorganization, merger or
consolidation of the Company or Bank with one or more corporations
as a result of which the outstanding shares of the class of
securities then subject to such plan or transaction are exchanged
for or converted into cash or property or securities not issued by
the Bank or the Company shall be distributed; or (E) a tender offer
is made for 20% or more of the voting securities of the Bank or
Company then outstanding.
(c) The Executive shall not have the right to receive
termination benefits pursuant to Section 3 hereof upon Termination
for Cause. The term "Termination for Cause" shall mean termination
upon intentional failure to perform stated duties, personal
dishonesty which results in loss to the Company or one of its
affiliates, willful violation of any law, rule, regulation (other
than traffic violations or similar offenses) or final cease and
desist order which results in substantial loss to the Company or
one of its affiliates, or any material breach of this Agreement.
For purposes of this Section, no act, or the failure to act, on the
Executive's part shall be "willful" unless done, or omitted to be
done, not in good faith and without reasonable belief that the
action or omission was in the best interest of the Company or its
affiliates. Notwithstanding the foregoing, the Executive shall not
be deemed to have been terminated for 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 of
the members of the Board at a meeting of the Board called and held
for that purpose (after reasonable notice to the Executive and an
opportunity for him, together with counsel, to be heard before the
Board), finding that in the good faith opinion of the Board, the
Executive was guilty of conduct justifying Termination for Cause
and specifying the particulars thereof in detail. The Executive
shall not have the right to receive compensation or other benefits
for any period after Termination for Cause. Any stock options or
limited rights granted to the Executive under any stock option plan
or any unvested awards granted under any other stock benefit plan
of the Bank, the Company or any subsidiary thereof, shall become
null and void effective upon the Executive's receipt of Notice of
Termination for Cause pursuant to Section 4 hereof and shall not be
exercisable by the Executive at any time subsequent to such
Termination for 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 or
involuntary termination of the Executive's employment with the
Company and/or the Bank, other than for Termination for Cause, the
Company shall pay (or cause the Bank to pay) the Executive, or in
the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay
or liquidated damages, or both, a sum equal to the following:
(i) within thirty (30) days following his termination of
employment with the Company, a lump sum payment, in an amount equal
to the present value of the salary that the Executive would have
earned if the Executive had continued working for the Company and
the Bank during the three (3) year period immediately following the
Executive's Date of Termination (as defined in Section 4) at the
annual rate of salary in effect for Executive immediately prior to
the Change of Control or the Executive's Date of Termination
(whichever is greater), where such present value is to be deter-
mined using a discount rate equal to the applicable short-term
federal rate prescribed under Section 1274(d) of the Internal
Revenue Code of 1986 (the "Code"), compounded using the compounding
period corresponding to the Company's regular payroll periods for
its officers;
(ii) within thirty (30) days following his termination of
employment with the Company, a lump sum payment in an amount equal
to the excess, if any, of:
(A) the present value of the aggregate benefits to which the
Executive would be entitled under any and all qualified and non-
qualified defined benefit pension plans maintained by, or covering
employees of, the Company or the Bank, if the Executive were 100%
vested thereunder and had continued working for the Company and the
Bank for the three (3) year period following the Executive's Date
of Termination, such benefits to be determined as of the Date of
Termination by adding to the service actually recognized under such
plans an additional period equal to the three (3) year period
following the Executive's Date of Termination and by including in
the compensation recognized under such plans, all the amounts
payable under Sections 3(a) and (v) to the extent such amounts
would have been credited under such plans had they been paid over
such three (3) year period; over
(B) the present value of the benefits to which the Executive
is actually entitled under such defined benefit pension plans as of
his Date of Termination;
where such present values are to be determined using the mortality
tables prescribed under Section 415(b)(2)(E)(v) of the Code and a
discount rate, compounded monthly equal to the annualized rate of
interest prescribed by the Pension Benefit Guaranty Corporation for
the valuation of immediate annuities payable under terminating
single-employer defined benefit plans for the month in which the
Executive's termination of employment occurs ("Applicable PBGC
Rate");
(iii) within thirty (30) days following his termination of
employment with the Company, a lump sum payment in an amount equal
to the present value of the additional employer contributions to
which the Executive would have been entitled under any and all
qualified and non-qualified defined contribution plans maintained
by, or covering employees of, the Company or the Bank, if the
Executive were 100% vested thereunder and had continued working for
the Company and the Bank during the three (3) year period following
the Executive's Date of Termination at the annual rate of
compensation in effect for the Executive immediately prior to the
Change in Control or the Executive's Date of Termination (whichever
is greater), and making the maximum amount of employee contribu-
tions, 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;
(iv) within thirty (30) days following his termination of
employment with the Company, a lump sum payment in an amount equal
to the fair market value (determined as of his Date of Termination,
or, if his termination of employment occurs after a Change of
Control, on the date of such Change of Control, whichever value is
greater) of any stock that would have been allocated or awarded to
the Executive under any and all stock-based qualified or non-
qualified employee benefit plan or plans maintained by, or covering
employees of, the Company or the Bank, if the Executive were 100%
vested thereunder and continued working for the Company and the
Bank during the three (3) year period following the Executive's
Date of Termination at the annual rate of compensation in effect
for him immediately prior to the Change in Control or the
Executive's Date of Termination (whichever is greater);
(v) the payments that would have been made to the Executive
under any cash bonus or long-term or short-term cash incentive
compensation plan maintained by, or covering employees of, the
Company or the Bank, if the Executive had continued working for the
Company and the Bank during the three (3) year period following the
Executive's Date of Termination and had earned the maximum bonus or
incentive award in each calendar year that ends during such period,
such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was ever
available to the Executive under such incentive compensation plan;
multiplied by
(B) the salary that would have been paid to the Executive
during each such calendar year at the annual rate of salary in
effect for the Executive immediately prior to the Change in Control
or the Executive's Date of Termination (whichever is greater);
such payments to be made (without discounting for early payment)
within thirty (30) days following the Executive's termination of
employment.
(b) Upon the occurrence of a Change in Control, followed at
any time during the term of this Agreement by the Executive's
voluntary or involuntary termination of employment, other than for
Termination for Cause, the Company shall provide (or cause the Bank
to provide) the following for the three (3) year period following
the Executive's Date of Termination:
(i) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long term
disability insurance benefits, if and to the extent necessary to
provide coverage for the Executive and his family equivalent to the
coverage to which the Executive would be entitled under the
applicable insurance benefit plans of the Company or the Bank as in
effect on his Date of Termination or on the date of such Change of
Control, whichever benefits are greater; and
(ii) the fringe benefits and perquisites made available or
provided to the Executive by the Company or the Bank immediately
prior to the Change of Control including, but not limited to, use
of any automobile provided to the Executive by the Company or the
Bank immediately prior to the Change of Control, and continued
payment of all membership fees, dues, capital contributions and
other expenses for membership in such clubs, associations or other
organizations which expenses were paid by the Company or the Bank
on behalf of the Executive prior to the Change of Control.
3A. TAX INDEMNIFICATION.
(a) This Section 3A shall apply if the Executive's employment
is terminated upon or following (i) a Change of Control (as defined
in Section 2 of this Agreement); or (ii) a change "in the ownership
or effective control" of the Company or the Bank or "in the
ownership of a substantial portion of the assets" of the Company or
the Bank within the meaning of Section 280G of the Code. If this
Section 3A applies, then, if for any taxable year, the Executive
shall be liable for the payment of an excise tax under Section 4999
of the Code with respect to any payment in the nature of
compensation made by the Company, the Bank or any direct or
indirect subsidiary or affiliate of the Company or the Bank to (or
for the benefit of) the Executive, the Company shall pay to the
Executive an amount equal to X determined under the following
formula:
E x P
X = ------------------------------------
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 3A;
FI = the highest marginal rate of income tax applicable to the
Executive under the Code for the taxable year in question;
SLI = the sum of the highest marginal rates of income tax
applicable to the Executive under all applicable state and local
laws for the taxable year in question; and
M = the highest marginal rate of Medicare tax applicable to the
Executive under the Code for the taxable year in question.
With respect to any payment in the nature of compensation that is
made to (or for the benefit of) the Executive under the terms of
this Agreement, or otherwise, and on which an excise tax under Sec-
tion 4999 of the Code will be assessed, the payment determined
under this Section 3A(a) shall be made to the Executive on the
earlier of (i) 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 (ii) the date the tax is required
to be paid by the Executive.
(b) Notwithstanding anything in this Section 3A to the contrary,
in the event that the Executive's liability for the excise tax
under Section 4999 of the Code for a taxable year is subsequently
determined to be different than the amount determined by the
formula (X + P) x E, where X, P and E have the meanings provided in
Section 3A(a), the Executive or the Company, 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 3A(a), when
increased by the amount of the payment made to the Executive under
this Section 3A(b) by the Company, or when reduced by the amount of
the payment made to the Company under this Section 3A(b) by the
Executive, equals the amount that should have properly been paid to
the Executive under Section 3A(a). The interest paid under this
Section 3A(b) shall be determined at the rate provided under
Section 1274(b)(2)(B) of the Code. To confirm that the proper
amount, if any, was paid to the Executive under this Section 3A,
the Executive shall furnish to the Company a copy of each tax
return which reflects a liability for an excise tax payment made by
the Company, at least 20 days before the date on which such return
is required to be filed with the Internal Revenue Service.
4. NOTICE OF TERMINATION.
Any purported termination by the Company, or by the Executive shall
be communicated by Notice of Termination to the other party hereto.
For purposes of this Agreement, a "Notice of Termination" shall
mean a written notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in
detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so
indicated. "Date of Termination" shall mean the date specified in
the Notice of Termination (which, in the case of a Termination for
Cause, shall not be less than thirty (30) days from the date such
Notice of Termination is given); provided that if, within thirty
(30) days after any notice of Termination is given, the party
receiving such Notice of Termination notifies the other party that
a dispute exists concerning the termination, the Date of
Termination shall be the date on which the dispute is finally
determined, either by mutual written agreement of the parties, by
a binding arbitration award, or by a final judgment, order or
decree of a court of competent jurisdiction (the time for appeal
there from having expired and no appeal having been perfected) and
provided further that the Date of Termination shall be extended by
a notice of dispute only if such notice is given in good faith and
the party giving such notice pursues the resolution of such dispute
with reasonable diligence. Notwithstanding the pendency of any
such dispute, the Company will continue to pay the Executive his
full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, annual base
salary) and continue him as a participant in all compensation,
benefit and insurance plans in which he was participating when the
notice of dispute was given, until the dispute is finally resolved
in accordance with the Agreement. Amounts paid under this Section
are in addition to all other amounts due under this Agreement and
shall not be offset against or reduce any other amount due under
this Agreement.
5. SOURCE OF PAYMENTS.
It is intended by the parties hereto that all payments provided in
this Agreement shall be paid in cash or check from the general
funds of the Company. The Company guarantees payment and provision
of all amounts and benefits due hereunder to the Executive and, if
such amount and benefits due from the Bank are not timely paid or
provided by the Bank, such amounts and benefits shall be paid and
provided by the Company.
6. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
This Agreement contains the entire understanding between the
parties hereto and supercedes any prior agreement between the
Company and the Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to
the Executive of a kind elsewhere provided. No provision of this
Agreement shall be interpreted to mean that the Executive is
subject to receiving fewer benefits than those available to him
without reference to this Agreement.
7. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment, levy, or similar
process or assignment by operation of law, and any attempt,
voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit
of, the Executive, the Company and their respective successor and
assigns.
8. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be any estoppel against the
enforcement of any provision of this Agreement, except by written
instrument of the party charged with such waiver or estoppel. No
such written waiver shall be deemed a continuing waiver unless
specifically stated therein, and each such waiver shall operate
only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as
to any act other than that specifically waived.
9. REINSTATEMENT OF BENEFITS UNDER BANK AGREEMENT.
In the event the Executive is suspended and/or temporarily
prohibited from participating in the conduct of the Bank's affairs
by a notice described in Section 9(b) of the Bank Change in Control
Agreement between the Executive and the Bank dated as of April 10,
1998 (the "Bank Agreement") during the term of this Agreement and
a Change in Control, as defined herein, occurs the Company will
assume its obligation to pay and the Executive will be entitled to
receive all of the termination benefits provided for under Section
3 of the Bank Agreement upon the notification of the Company of the
Bank's receipt of a dismissal of charges in the Notice.
10. EFFECT OF ACTION UNDER BANK AGREEMENT.
Notwithstanding any provision herein to the contrary, to the extent
that payments and benefits are paid to or received by the Executive
under the Bank Change in Control Agreement dated as of April 10,
1998, between the Executive and Bank, the amount of such payments
and benefits paid by the Bank will be subtracted from any amount
due simultaneously to the Executive under similar provisions of
this Agreement.
11. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of
any provision, is held invalid, such invalidity shall not affect
any other provision of this Agreement or any part of such provision
not held so invalid, and each such other provision and part thereof
shall to the full extent consistent with law continue in full force
and effect.
12. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely
for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
13. GOVERNING LAW.
The validity, interpretation, performance, and enforcement of this
Agreement shall be governed by the laws of the State of New York,
unless otherwise specified herein.
14. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted
before a panel of three arbitrators sitting in a location selected
by the employee within fifty (50) miles from the location of the
Company, in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided,
however, that the Executive shall be entitled to seek specific
performance of his right to be paid until the Date of Termination
during the pendency of any dispute or controversy arising under or
in connection with this Agreement.
15. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by the Executive
pursuant to any dispute or question of interpretation relating to
this Agreement shall be paid or reimbursed by the Company if the
Executive is successful pursuant to a legal judgment, arbitration
or settlement.
16. INDEMNIFICATION.
The Company shall provide the Executive (including his heirs,
executors and administrators) with coverage under a standard
directors' and officers' liability insurance policy at its expense,
or in lieu thereof, shall indemnify the Executive (including his
heirs, executors and administrators) to the fullest extent
permitted under Delaware law and as provided in the Company's
certificate of incorporation against all expenses and liabilities
reasonably incurred by him in connection with or arising out of any
action, suit or proceeding in which he may be involved by reason of
his having been a director or officer of the Company (whether or
not he continues to be a director or officer at the time of
incurring such expenses or liabilities), such expenses and
liabilities to include, but not be limited to, judgements, court
costs and attorneys' fees and the cost of reasonable settlements.
17. SUCCESSOR TO THE COMPANY.
The Company shall require any successor or assignee, whether direct
or indirect, by purchase, merger, consolidation or otherwise, to
all or substantially all the business or assets of the Bank or the
Company, expressly and unconditionally to assume and agree to
perform the Company's obligations under this Agreement, in the same
manner and to the extent that the Company would be required to
perform if no such succession or assignment had taken place.
IN WITNESS WHEREOF, Haven Bancorp, Inc. has caused this Change in
Control Agreement to be executed by its duly authorized officer,
and the Executive has signed this Agreement, all as of the date
first above written.
WITNESS:
- --------------------------- -----------------------
Executive
SEAL
ATTEST: HAVEN BANCORP, INC.
- --------------------------- BY: -------------------
SEAL
STATE OF NEW YORK )
: ss.:
COUNTY OF QUEENS )
On this ________ day of ______________, 1998, before me personally
came Mark A. Ricca, to me known, and known to me to be the
individual described in the foregoing instrument, who, being by me
duly sworn, did depose and say that he resides at
______________________ and that he signed his name to the foregoing
instrument.
---------------------------
Notary Public
STATE OF NEW YORK)
: ss.:
COUNTY OF QUEENS )
On this day of , 1998, before me personally came
, to me known, who, being by me duly sworn, did depose and
say that he resides at , that he
is of HAVEN BANCORP, INC. the Delaware
corporation described in and which executed the foregoing instru-
ment; that he knows the seal of said corporation; that the seal
affixed to said instrument is such seal; that it was so affixed by
order of the Board of Directors of said corporation; and that he
signed his name thereto by like order.
---------------------------
Notary Public