EXHIBIT 10.2(G)
CFS BANK
CHANGE IN CONTROL AGREEMENT
This AGREEMENT is made effective as of April 10, 1998, by and
between CFS Bank (the "Bank"), a Federally chartered savings
institution, with its office at 93-22 Jamaica Avenue, Woodhaven,
New York 11421, and Mark A. Ricca (the "Executive"). The Bank is
the wholly-owned subsidiary of Haven Bancorp, Inc. (the "Company"),
a corporation organized under the laws of the State of Delaware.
WHEREAS, the Bank recognizes the substantial contribution the
Executive will make to the Bank 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 Bank, 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.
The term of this Agreement shall be deemed to have commenced
as of the date first above written and shall continue for a period
of twenty-four (24) full calendar months thereafter; provided,
however, commencing as of September 23, 1998, and continuing on
each anniversary of such date thereafter (each, an "Anniversary
Date") the Board of Directors of the Bank (the "Board") may extend
this Agreement to the second anniversary of such Anniversary Date
such that the remaining term of this Agreement shall be for a
period of twenty-four (24) full calendar months commencing as of
such Anniversary Date. The Board will review the Agreement and the
Executive's performance annually for purposes of determining
whether to extend the Agreement, and the results thereof shall be
included in the minutes of the Board's meeting.
2. PAYMENTS TO THE EXECUTIVE UPON 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 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. Upon
the occurrence of a Change in Control, the Executive shall have the
right to elect to voluntarily terminate his employment at any time
during the term of this Agreement following any demotion, loss of
title, office or significant authority, reduction in his annual
compensation or benefits, or relocation of his principal place of
employment by more than 30 miles from its location immediately
prior to the Change in Control.
(b) Definition of a Change in Control. A "Change in Control"
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 Company's
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 of Control
of the Bank or Company within the meaning of the Change in Bank
Control Act and the rules and regulations promulgated thereunder by
the appropriate federal banking agency, as in effect on the date
hereof; or (iii) results in a transaction requiring prior Federal
Reserve Board ("FRB") approval under the Bank Holding Company Act
of 1956 and the regulations promulgated thereunder by the FRB, as
in effect on the date hereof; or (iv) results in a transaction
requiring prior Office of Thrift Supervision ("OTS") (or its
predecessor agency) approval under the Home Owners' Loan Act and
the regulations promulgated thereunder by the OTS, as in effect on
the date hereof. Without limiting the foregoing, a Change in
Control shall be deemed to have occurred at such time as: (A) any
"person" (as the term is used in Section 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 of the Bank or the Company representing 20% or more of
the Bank's or the Company's outstanding securities, except for any
securities of the Bank purchased by the Company in connection with
the conversion of the Bank to the stock form and any securities
purchased by the Bank's employee stock ownership plan and trust;
(B) individuals who constitute the Board of Directors of the
Company or the Board 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 same Nominating Committee serving under an Incumbent Board,
shall be, for purposes of this clause (B), considered as though he
were a member of the Incumbent Board; (C) a plan of reorganization,
merger, consolidation, sale of all or substantially all the assets
of the Bank or the Company becomes effective or a similar
transaction occurs in which the Bank or Company is not the
resulting entity; (D) a plan of reorganization, merger or
consolidation of the Company or Bank or a similar transaction with
one or more corporations, which will result in the outstanding
shares of the class of securities then subject to such plan or
transaction being exchanged for or converted into cash or property
or securities not issued by the Bank or the Company, is approved by
the stockholders of the Company in response to a proxy statement
that was distributed, soliciting proxies from stockholders of the
Company, by someone other than the current management of the
Company; or (E) 20% or more of the voting securities of the Bank or
Company then outstanding are tendered and accepted by an offeror as
of the closing of a tender offer for such securities.
(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
because of the 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, or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order, or
material breach of any material provision 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 interests of the Bank 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 a majority of the
Board of Directors of the Bank 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 at such meeting and which such meeting shall be held not
more than 30 days from the date of notice during which period the
Executive may be suspended with pay), 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 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
Bank, other than for Termination for Cause, the Bank shall pay the
Executive, or in the event of the Executive's subsequent death, the
Executive's beneficiary or beneficiaries, or the Executive's
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 the Executive's termi-
nation of employment with the Bank, 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
Bank during the two (2) year period immediately following the
Executive's Date of Termination (as defined in Section 4(b)) at the
annual rate of salary in effect for the 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 Bank's regular payroll periods for its
officers;
(ii) within thirty (30) days following the Executive's termi-
nation of employment with the Bank, 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 Bank, if the Executive were 100% vested
thereunder and had continued working for the Bank for the two (2)
year period following the Executive's Date of Termination, such
benefits to be determined as of Date of Termination by adding to
the service actually recognized under such plans an additional
period equal to the two (2) 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)(i)
and (v) to the extent such amounts would have been credited under
such plans had they been paid over such two (2) 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 the Executive's
termination of employment with the Bank, 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 Bank, if the Executive
were 100% vested thereunder and had continued working for the
Company and the Bank during the two (2) 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 contributions,
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 the Executive's
termination of employment with the Bank, a lump sum payment in an
amount equal to the fair market value (determined as of the
Executive's Date of Termination, or, if the Executive's 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 Bank, if the
Executive were 100% vested thereunder and continued working for the
Bank during the two (2) 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
Bank, if the Executive had continued working for the Company and
the Bank during the two (2) 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 Bank shall provide the following for the
two (2) 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 the Executive's family
equivalent to the coverage to which the Executive would be entitled
under the applicable insurance benefit plans of the Bank as in
effect on the Executive's 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 Bank immediately prior to the
Change of Control including, but not limited to, use of any
automobile provided to the Executive by 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 Bank on behalf of the Executive prior to the
Change of Control.
(c) In the event that the Executive is receiving monthly
payments pursuant to Section 3(a) hereof, on an annual basis,
thereafter, the Executive shall elect whether the balance of the
amount payable under the agreement at that time shall be paid in a
lump sum or on a pro rata basis. Such election shall be
irrevocable for the year for which such election is made.
(d) Upon the occurrence of a Change in Control, the Executive
shall be entitled to receive benefits due him under, or contributed
by, the Bank on his behalf pursuant to any retirement, incentive,
profit sharing, bonus, performance, disability or other employee
benefit plan maintained by the Bank on the Executive's behalf to
the extent that such benefits are not otherwise paid to the
Executive upon a Change in Control.
(e) Notwithstanding the preceding paragraphs of this Section
3, in the event that:
(i) the aggregate payments or benefits to be made or afforded
to the Executive under said paragraph (the "Termination Benefits")
would be deemed to include an "excess parachute payment" under
Section 280G of the Code or any successor thereto, and
(ii) if such Termination Benefits were reduced to an amount
(the "Non-Triggering Amount"), the value of which is one dollar
($1.00) less than an amount equal to three (3) times the
Executive's "base amount," as determined in accordance with said
Section 280G, and the Non-Triggering Amount would be greater than
the aggregate value of the Termination Benefits (without such
reduction) minus the amount of tax required to be paid by the
Executive thereon by Section 499 of the Code, then the Termination
Benefits shall be reduced to the Non-Triggering Amount. The
allocation of the reduction required by the preceding paragraphs of
this Section 3 shall be determined by the Executive.
4. NOTICE OF TERMINATION.
(a) Any purported termination by the Bank 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 reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under
the provision so indicated.
(b) "Date of Termination" shall mean (A) if the Executive's
employment is terminated for Disability, thirty (30) days after a
Notice of Termination is given (provided that he shall not have
returned to the performance of the Executive's duties on a full-
time basis during such thirty (30) day period), and (B) if the
Executive's employment is terminated for any other reason, the date
specified in the Notice of Termination which, in the instance of
Termination for Cause, shall be immediate.
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 Bank. The Company guarantees payment and provision of
all amounts and benefits due hereunder to the Executive and, if
such amounts and benefits due from the Bank are not timely paid or
provided by the Bank, such amounts and benefits shall be paid or
provided by the Company.
6. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
This Agreement contains the entire understanding between the
parties hereto and supersedes any prior agreement between the Bank
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 Bank and their respective successors
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 conditions 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. REQUIRED REGULATORY PROVISIONS.
(a) The Bank may terminate the Executive's employment at any
time, but any termination by the Bank, other than Termination for
Cause, shall not prejudice the Executive's right to compensation or
other benefits under this Agreement. The Executive shall not have
the right to receive compensation or other benefits for any period
after Termination for Cause as defined in Section 2 hereinabove.
(b) If the Executive is suspended from office and/or
temporarily prohibited from participating in the conduct of the
Bank's affairs by a notice served under Section 8(e)(3) or 8(g)(1)
of the Federal Deposit Insurance Act (12 U.S.C. Section 1818(e)(3)
or (g)(1)), the Bank's obligations under this contract shall be
suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Bank
may in its discretion (i) pay the Executive all or part of the
compensation withheld while their contract obligations were
suspended and (ii) reinstate (in whole or in part) any of the
obligations which were suspended.
(c) If the Executive is removed and/or permanently prohibited
from participating in the conduct of the Bank's affairs by an order
issued under Section 8(e)(4) or 8(g)(1) of the Federal Deposit
Insurance Act (12 U.S.C. Section 1818(e)(4) or (g)(1)), all
obligations of the Bank under this contract shall terminate as of
the effective date of the order, but vested rights of the
contracting parties shall not be affected.
(d) If the Bank is in default (as defined in Section 3(x)(1)
(12 USC 1813(x)(1)) of the Federal Deposit Insurance Act), all
obligations of the Bank under this contract shall terminate as of
the date of default, but this paragraph shall not affect any vested
rights of the contracting parties.
(e) All obligations of the Bank under this contract shall be
terminated, except to the extent determined that continuation of
the contract is necessary for the continued operation of the
institution, (i) by the Federal Deposit Insurance Corporation
("FDIC"), at the time FDIC enters into an agreement to provide
assistance to or on behalf of the Bank under the authority
contained in Section 13(c) (12 USC Section 1823(c)) of the Federal
Deposit Insurance Act; or (ii) by the OTS at the time the OTS or
its District Director approves a supervisory merger to resolve
problems related to the operations of the Bank or when the Bank is
determined by the OTS or FDIC to be in an unsafe or unsound
condition. Any rights of the parties that have already vested,
however, shall not be affected by such action.
(f) Any payments made to the Executive pursuant to this
Agreement, or otherwise, are subject to and conditioned upon
compliance with 12 U.S.C. Section 1828(k).
10. REINSTATEMENT OF BENEFITS UNDER SECTION 9(b).
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) hereof (the "Notice") during
the term of this Agreement and a Change in Control, as defined
herein, occurs, the Bank 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 this Agreement upon the
Bank's receipt of a dismissal of charges in the Notice.
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 New York law to the extent not
preempted by Federal law.
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
Bank, 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.
In the event any dispute or controversy arising or in
connection with the Executive's termination is resolved in favor of
the Executive, whether by judgment, arbitration or settlement, the
Executive shall be entitled to the payment of all back-pay,
including salary, bonuses and any other cash compensation, fringe
benefits and any compensation and benefits due the Executive under
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 Bank if the
Executive is successful on the merits pursuant to a legal judgment,
arbitration or settlement, which payments are guaranteed by the
Company pursuant to Section 5 hereof.
16. INDEMNIFICATION.
The Bank shall provide the Executive (including the Executive's
legal representatives, successors and assigns) with coverage under
a standard directors' and officers' liability insurance policy at
its expense, or in lieu thereof, shall indemnify the Executive
(including the Executive's legal representatives, successors and
assigns) for reasonable costs and expenses incurred by the
Executive in defending or settling any judicial or administrative
proceeding, or threatened proceeding, whether civil, criminal or
otherwise, including any appeal or other proceeding for review.
Indemnification by the Bank shall be made only upon the final
judgment on the merits in favor of the Executive, in case of
settlement, in case of final judgment against the Executive or in
the case of final judgment in favor of the Executive other than on
the merits, if a majority of the disinterested directors of the
Bank determine the Executive was acting in good faith within the
scope of the Executive's employment or authority in accordance with
12 C.F.R. section 545.121(c)(iii).
Any such information of the Executive must conform with the notice
provisions of 12 C.F.R. part 545.121(c)(iii) to indemnify the
Executive to the fullest for such expenses and liabilities to
include, but not be limited to, judgments, court costs and
attorneys' fees and the cost of reasonable settlements, such
settlements to be approved by the Board of Directors of the Bank,
if such action is brought against the Executive in the Executive's
capacity as an officer or director of the Bank, however, shall not
extend to matters as to which the Executive is finally adjudged to
be liable for willful misconduct in the performance of the
Executive's duties.
17. SUCCESSOR TO THE BANK.
The Bank 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 Bank's obligations under this Agreement, in the same
manner and to the extent that the Bank would be required to perform
if no such succession or assignment had taken place.
IN WITNESS WHEREOF, CFS Bank and Haven Bancorp, Inc. have caused
this Agreement to be executed by their duly authorized officers,
and the Executive has signed this Agreement, all as of the date
first above written.
WITNESS:
- --------------------------- -----------------------
Executive
ATTEST: CFS BANK
- --------------------------- BY: -------------------
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 CFS BANK, the savings bank described in and which
executed the foregoing instrument; that he knows the seal of said
savings bank; that the seal affixed to said instrument is such
seal; that it was so affixed by order of the Board of Directors of
said savings bank; and that he signed his name thereto by like
order.
-----------------------
Notary Public