-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, InDMYcaMr4RL3Fja0JPo6lD7gt0BllscQ6rNN1auTVu8yHYIUbtOfM/1RznjqrOn NrSIg6I9dsUGzVFTI1Ojsg== 0000943374-08-001977.txt : 20081215 0000943374-08-001977.hdr.sgml : 20081215 20081215115645 ACCESSION NUMBER: 0000943374-08-001977 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20081210 ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20081215 DATE AS OF CHANGE: 20081215 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BCB BANCORP INC CENTRAL INDEX KEY: 0001228454 STANDARD INDUSTRIAL CLASSIFICATION: SAVINGS INSTITUTION, FEDERALLY CHARTERED [6035] IRS NUMBER: 260065262 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-50275 FILM NUMBER: 081249040 BUSINESS ADDRESS: STREET 1: 860 BROADWAY CITY: BAYONNE STATE: NJ ZIP: 07002 8-K 1 form8k_cic-121208.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): December 10, 2008 BCB BANCORP, INC. ----------------- (Exact Name of Registrant as Specified in Charter) New Jersey 0-50275 26-0065262 - ------------------------------- ---------------- ------------------- (State or Other Jurisdiction) Commission File No.) (I.R.S. Employer of Incorporation) Identification No.) 104-110 Avenue C, Bayonne, New Jersey 07002 - -------------------------------------- -------------------- (Address of Principal Executive Offices) (Zip Code) Registrant's telephone number, including area code: (201) 823-0700 -------------- Not Applicable -------------- (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. (e) Amended and Restated Change in Control Agreements. On December 10, 2008, BCB Bancorp, Inc. (the "Company") entered into an amended and restated change change in control agreement with each of Donald Mindiak, the President, Chief Executive Officer and Chief Financial Officer of the Company, Thomas Coughlin, the Chief Operating Officer of the Company, and James Collins, the Senior Lending Officer of the Company (collectively, the "Agreements"). The Agreements supersede and replace the change in control agreements previously entered into with Messrs. Mindiak, Coughlin, and Collins. The Agreements were amended and restated to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the "Code") and the final regulations issued thereunder. The terms of the Agreements are materially consistent with the previously disclosed terms of the prior change in control agreements entered into with Messrs. Mindiak, Coughlin, and Collins. The foregoing descriptions of the Agreements are qualified in their entirety by reference to the Change in Control Agreements attached hereto as Exhibit 10.1, Exhibit 10.2 and Exhibit 10.3 of this Current Report, and are incorporated by reference into this Item 5.02. Executive Agreements. On December 10, 2008, the Company entered into an executive agreement with each of Messrs. Mindiak, Coughlin, and Collins (the "Executive Agreements"). The Executive Agreements provide that in the event of a change in control of the Company, Messrs. Mindiak, Coughlin, and Collins would be entitled to a gross-up payment to cover applicable excise taxes, if any, on the compensation or benefits paid by the Company that are considered "excess parachute payments" under Sections 280G and 4999 of the Code such that the net amount retained by Messrs. Mindiak, Coughlin, and Collins after deduction of the excise and other applicable taxes would equal the amount of compensation or benefits due to Messrs. Mindiak, Coughlin, and Collins. The foregoing descriptions of the Executive Agreements are qualified in their entirety by reference to the Executive Agreements attached hereto as Exhibit 10.4, Exhibit 10.5, and Exhibit 10.6 of this Current Report, and are incorporated by reference into this Item 5.02. Item 9.01. Financial Statements and Exhibits. (a) Financial Statements of Businesses Acquired: None (b) Pro Forma Financial Information: None (c) Shell company transactions: None (d) Exhibits: Exhibit Number Description Exhibit 10.1 Amended and Restated Change in Control Agreement for Donald Mindiak Exhibit 10.2 Amended and Restated Change in Control Agreement for Thomas Coughlin Exhibit 10.3 Amended and Restated Change in Control Agreement for James Collins Exhibit 10.4 Executive Agreement for Donald Mindiak Exhibit 10.5 Executive Agreement for Thomas Coughlin Exhibit 10.6 Executive Agreement for James Collins SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized. BCB BANCORP, INC. DATE: December 10, 2008 By: /s/ Donald Mindiak ---------------------------------- Donald Mindiak President and Chief Executive Officer EX-10.1 2 form8k_exh101-121208.txt CIC FOR MINDIAK BCB BANCORP, INC. CHANGE IN CONTROL AGREEMENT FOR DONALD MINDIAK This AGREEMENT is made effective as of December 10, 2008 by and between BCB BANCORP, INC., (the "Company"), and DONALD MINDIAK (the "Executive"). Any reference to "Bank" herein shall mean BCB COMMUNITY BANK, a New Jersey commercial bank or any successor thereto. WHEREAS, the Company and the Bank recognize the substantial contribution the Executive has made to the Company and the Bank and the Company and the Bank wish 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 President and Chief Executive Officer for the Company and in the position of President and Chief Executive Officer for the Bank, which are positions of substantial responsibility; NOW, THEREFORE, in consideration of the contribution 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 thirty-six (36) full calendar months from the effective date of this Agreement set forth above, and shall include any extension or renewal made pursuant to this Section. Commencing on December 1, 2009 and continuing on the 1st of December of each year thereafter (the "Anniversary Date"), this Agreement shall renew for an additional year such that the remaining term shall be three (3) years unless written notice of non-renewal ("Non-Renewal Notice") is provided to Executive at least thirty (30) days and not more than sixty (60) days prior to any such Anniversary Date, that this Agreement shall terminate at the end of thirty-six (36) months following such Anniversary Date. 2. CHANGE IN CONTROL This Agreement provides for certain payments and benefits to Executive only in the event of Change in Control. A "Change in Control" shall mean (i) a change in the ownership of the Company or Bank, (ii) a change in the effective control of the Company or Bank, or (iii) a change in the ownership of a substantial portion of the assets of the Company or Bank, as described below. (a) A change in the ownership of a corporation occurs on the date that any one person, or more than one person acting as a group (as defined in Treasury Regulations section 1.409A-3(i)(5)(v)(B)), acquires ownership of stock of the Company or Bank that, together with stock held by such person or group, constitutes more than 50 percent of the total fair market value or total voting power of the stock of such corporation. For these purposes, a change in ownership will not be deemed to have occurred if no stock of the Company or Bank is outstanding. (b) A change in the effective control of the Company or Bank occurs on the date that either (i) any one person, or more than one person acting as a group (as defined in Treasury Regulations section 1.409A-3(i)(5)(vi)(D)) acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Company or Bank possessing 30 percent or more of the total voting power of the stock of the Company or Bank, or (ii) a majority of the members of the Company's or Bank's board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Company's or Bank's board of directors prior to the date of the appointment or election, provided that this subsection "(ii)" is inapplicable where a majority shareholder of the Company or Bank is another corporation. (c) A change in a substantial portion of the Company's or Bank's assets occurs on the date that any one person or more than one person acting as a group (as defined in Treasury Regulations section 1.409A-3(i)(5)(vii)(C)) acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Company or Bank that have a total gross fair market value equal to or more than 40 percent of the total gross fair market value of (i) all of the assets of the Company or Bank, or (ii) the value of the assets being disposed of, either of which is determined without regard to any liabilities associated with such assets. For all purposes hereunder, the definition of Change in Control shall be construed to be consistent with the requirements of Treasury Regulations section 1.409A-3(i)(5), except to the extent that such regulations are superseded by subsequent guidance. 3. PAYMENTS TO EXECUTIVE UPON CHANGE IN CONTROL (a) Upon the occurrence of a Change in Control (and even if the Executive's employment will not terminate as a result of such Change in Control), the Company or the Bank shall pay the Executive (or in the event of his subsequent death, his estate), a cash lump sum equal to 2.999 of the Executive's "base amount" as calculated under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor thereto); provided, however, that such amounts shall be subject to applicable withholding taxes. Such payment shall be made on the effective date of the Change in Control or within ten (10) business days thereafter. "Base amount" generally means the Executive's average annual compensation for services performed for the Company and the Bank which was includible in the Executive's gross income for the most recent five (5) taxable years ending before the date of the Change in Control. (b) Upon the occurrence of a Change in Control, the Executive will have such rights as specified in any other employee benefit plan (including, but not limited to, equity compensation plans). (c) Notwithstanding the preceding paragraphs of this Section 3, in no event shall the aggregate payments or benefits to be made or afforded to the Executive (the "Change in Control Benefits") constitute an "excess parachute payment" under Code Section 280G, and in order to avoid such a result, Change in Control Benefits will be reduced, if necessary, 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 Code Section 280G. The allocation of the reduction required hereby among Change in Control Benefits provided by the preceding paragraphs of this Section 3 shall be determined by the Executive. (d) Upon the occurrence of a Change in Control, the acquirer shall be obligated to provide non-taxable health insurance coverage to the Executive and his dependents, at no cost to the Executive, for a period of thirty-six (36) months from the date of the Change in Control at a level comparable to the 2 health benefits provided to the Executive and his dependents by the Company and/or the Bank immediately prior to the Change in Control. Such health insurance benefits shall not be subject to the reduction described in Section 3(c). 4. 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 or the Bank, provided, however, that in the event that the payment of any amounts due under Section 3 above is made by the Bank, such payment shall offset the payment due from the Company hereunder. 5. 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 Company, 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. 6. 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, the Bank and their respective successors and assigns. 7. 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 3 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. 8. REQUIRED PROVISIONS Notwithstanding anything herein contained to the contrary, any payments to Executive by the Company or the Bank, whether pursuant to this Agreement or otherwise, are subject to and conditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and the regulations promulgated thereunder in 12 C.F.R. Part 359. 9. 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. 10. 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. 11. GOVERNING LAW (a) The validity, interpretation, performance, and enforcement of this Agreement shall be governed by the laws of the State of New Jersey. (b) 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 Judicial Mediation and Arbitration Systems (JAMS) then in effect. Judgment may be entered on the arbitrator's award in any court having jurisdiction. 12. 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 or the Bank if the Executive is successful on the merits pursuant to a legal judgment, arbitration or settlement. Such reimbursement shall occur no later than sixty (60) days after the end of the year in which the dispute is resolved in Executive's favor. 13. SUCCESSOR TO THE COMPANY OR BANK The Company and 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 Company or the Bank, expressly and unconditionally to assume and agree to perform the Company's or the Bank's 4 obligations under this Agreement, in the same manner and to the same extent that the Company or the Bank would be required to perform if no such succession or assignment had taken place. 14. SIGNATURES IN WITNESS WHEREOF, the Company and the Bank have caused this Agreement to be executed by its duly authorized officers, and the Executive has signed this Agreement, on the day and date first above written. BCB BANCORP, INC. By: /s/ Mark D. Hogan ---------------------------------- BCB COMMUNITY BANK By: /s/ Mark D. Hogan ---------------------------------- EXECUTIVE By: /s/ Donald Mindiak ----------------------------------- Donald Mindiak President, Chief Executive Officer, and Chief Financial Officer EX-10.2 3 form8k_exh102-121208.txt CIC FOR COUGHLIN BCB BANCORP, INC. CHANGE IN CONTROL AGREEMENT FOR THOMAS M. COUGHLIN This AGREEMENT is made effective as of December 10, 2008 by and between BCB BANCORP, INC., (the "Company"), and THOMAS M. COUGHLIN (the "Executive"). Any reference to "Bank" herein shall mean BAYONNE COMMUNITY BANK, a New Jersey commercial bank or any successor thereto. WHEREAS, the Company and the Bank recognize the substantial contribution the Executive has made to the Company and the Bank and the Company and the Bank wish 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 Chief Operating Officer and Chief Financial Officer for the Company and in the position of Chief Operating Officer and Chief Financial Officer for the Bank, which are positions of substantial responsibility; NOW, THEREFORE, in consideration of the contribution 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 thirty-six (36) full calendar months from the effective date of this Agreement set forth above, and shall include any extension or renewal made pursuant to this Section. Commencing on December 1, 2009 and continuing on the 1st of December of each year thereafter (the "Anniversary Date"), this Agreement shall renew for an additional year such that the remaining term shall be three (3) years unless written notice of non-renewal ("Non-Renewal Notice") is provided to Executive at least thirty (30) days and not more than sixty (60) days prior to any such Anniversary Date, that this Agreement shall terminate at the end of thirty-six (36) months following such Anniversary Date. 2. CHANGE IN CONTROL This Agreement provides for certain payments and benefits to Executive only in the event of Change in Control. A "Change in Control" shall mean (i) a change in the ownership of the Company or Bank, (ii) a change in the effective control of the Company or Bank, or (iii) a change in the ownership of a substantial portion of the assets of the Company or Bank, as described below. (a) A change in the ownership of a corporation occurs on the date that any one person, or more than one person acting as a group (as defined in Treasury Regulations section 1.409A-3(i)(5)(v)(B)), acquires ownership of stock of the Company or Bank that, together with stock held by such person or group, constitutes more than 50 percent of the total fair market value or total voting power of the stock of such corporation. For these purposes, a change in ownership will not be deemed to have occurred if no stock of the Company or Bank is outstanding. (b) A change in the effective control of the Company or Bank occurs on the date that either (i) any one person, or more than one person acting as a group (as defined in Treasury Regulations section 1.409A-3(i)(5)(vi)(D)) acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Company or Bank possessing 30 percent or more of the total voting power of the stock of the Company or Bank, or (ii) a majority of the members of the Company's or Bank's board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Company's or Bank's board of directors prior to the date of the appointment or election, provided that this subsection "(ii)" is inapplicable where a majority shareholder of the Company or Bank is another corporation. (c) A change in a substantial portion of the Company's or Bank's assets occurs on the date that any one person or more than one person acting as a group (as defined in Treasury Regulations section 1.409A-3(i)(5)(vii)(C)) acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Company or Bank that have a total gross fair market value equal to or more than 40 percent of the total gross fair market value of (i) all of the assets of the Company or Bank, or (ii) the value of the assets being disposed of, either of which is determined without regard to any liabilities associated with such assets. For all purposes hereunder, the definition of Change in Control shall be construed to be consistent with the requirements of Treasury Regulations section 1.409A-3(i)(5), except to the extent that such regulations are superseded by subsequent guidance. 3. PAYMENTS TO EXECUTIVE UPON CHANGE IN CONTROL (a) Upon the occurrence of a Change in Control (and even if the Executive's employment will not terminate as a result of such Change in Control), the Company or the Bank shall pay the Executive (or in the event of his subsequent death, his estate), a cash lump sum equal to 2.999 of the Executive's "base amount" as calculated under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor thereto); provided, however, that such amounts shall be subject to applicable withholding taxes. Such payment shall be made on the effective date of the Change in Control or within ten (10) business days thereafter. "Base amount" generally means the Executive's average annual compensation for services performed for the Company and the Bank which was includible in the Executive's gross income for the most recent five (5) taxable years ending before the date of the Change in Control. (b) Upon the occurrence of a Change in Control, the Executive will have such rights as specified in any other employee benefit plan (including, but not limited to, equity compensation plans). (c) Notwithstanding the preceding paragraphs of this Section 3, in no event shall the aggregate payments or benefits to be made or afforded to the Executive (the "Change in Control Benefits") constitute an "excess parachute payment" under Code Section 280G, and in order to avoid such a result, Change in Control Benefits will be reduced, if necessary, to an amount (the "Non-Triggering Amount"), the value of which is one dollar ($1.00) less than an 2 amount equal to three (3) times the Executive's "base amount," as determined in accordance with Code Section 280G. The allocation of the reduction required hereby among Change in Control Benefits provided by the preceding paragraphs of this Section 3 shall be determined by the Executive. (d) Upon the occurrence of a Change in Control, the acquirer shall be obligated to provide non-taxable health insurance coverage to the Executive and his dependents, at no cost to the Executive, for a period of thirty-six (36) months from the date of the Change in Control at a level comparable to the health benefits provided to the Executive and his dependents by the Company and/or the Bank immediately prior to the Change in Control. Such health insurance benefits shall not be subject to the reduction described in Section 3(c). 4. 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 or the Bank, provided, however, that in the event that the payment of any amounts due under Section 3 above is made by the Bank, such payment shall offset the payment due from the Company hereunder. 5. 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 Company, 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. 6. 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, the Bank and their respective successors and assigns. 7. 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 3 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. 8. REQUIRED PROVISIONS Notwithstanding anything herein contained to the contrary, any payments to Executive by the Company or the Bank, whether pursuant to this Agreement or otherwise, are subject to and conditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and the regulations promulgated thereunder in 12 C.F.R. Part 359. 9. 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. 10. 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. 11. GOVERNING LAW (a) The validity, interpretation, performance, and enforcement of this Agreement shall be governed by the laws of the State of New Jersey. (b) 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 Judicial Mediation and Arbitration Systems (JAMS) then in effect. Judgment may be entered on the arbitrator's award in any court having jurisdiction. 12. 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 or the Bank if the Executive is successful on the merits pursuant to a legal judgment, arbitration or settlement. Such reimbursement shall occur no later than sixty (60) days after the end of the year in which the dispute is resolved in Executive's favor. 13. SUCCESSOR TO THE COMPANY OR BANK The Company and 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 Company or the Bank, expressly 4 and unconditionally to assume and agree to perform the Company's or the Bank's obligations under this Agreement, in the same manner and to the same extent that the Company or the Bank would be required to perform if no such succession or assignment had taken place. 14. SIGNATURES IN WITNESS WHEREOF, the Company and the Bank have caused this Agreement to be executed by its duly authorized officers, and the Executive has signed this Agreement, on the day and date first above written. BCB BANCORP, INC. By: /s/ Mark D. Hogan ------------------------------------ BCB COMMUNITY BANK By: /s/ Mark D. Hogan ------------------------------------ EXECUTIVE By: /s/ Thomas M. Coughlin ------------------------------------ Thomas M. Coughlin Chief Operating Officer EX-10.3 4 form8k_exh103-121208.txt CIC FOR COLLINS BCB BANCORP, INC. CHANGE IN CONTROL AGREEMENT FOR JAMES E. COLLINS This AGREEMENT is made effective as of December 10, 2008 by and between BCB BANCORP, INC., (the "Company"), and JAMES E. COLLINS (the "Executive"). Any reference to "Bank" herein shall mean BCB COMMUNITY BANK, a New Jersey commercial bank or any successor thereto. WHEREAS, the Company and the Bank recognize the substantial contribution the Executive has made to the Company and the Bank and the Company and the Bank wish 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 Lending Officer for the Bank, which are positions of substantial responsibility; NOW, THEREFORE, in consideration of the contribution 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 thirty-six (36) full calendar months from the effective date of this Agreement set forth above, and shall include any extension or renewal made pursuant to this Section. Commencing on December 1, 2009 and continuing on the 1st of December of each year thereafter (the "Anniversary Date"), this Agreement shall renew for an additional year such that the remaining term shall be three (3) years unless written notice of non-renewal ("Non-Renewal Notice") is provided to Executive at least thirty (30) days and not more than sixty (60) days prior to any such Anniversary Date, that this Agreement shall terminate at the end of thirty-six (36) months following such Anniversary Date. 2. CHANGE IN CONTROL This Agreement provides for certain payments and benefits to Executive only in the event of Change in Control. A "Change in Control" shall mean (i) a change in the ownership of the Company or Bank, (ii) a change in the effective control of the Company or Bank, or (iii) a change in the ownership of a substantial portion of the assets of the Company or Bank, as described below. (a) A change in the ownership of a corporation occurs on the date that any one person, or more than one person acting as a group (as defined in Treasury Regulations section 1.409A-3(i)(5)(v)(B)), acquires ownership of stock of the Company or Bank that, together with stock held by such person or group, constitutes more than 50 percent of the total fair market value or total voting power of the stock of such corporation. For these purposes, a change in ownership will not be deemed to have occurred if no stock of the Company or Bank is outstanding. (b) A change in the effective control of the Company or Bank occurs on the date that either (i) any one person, or more than one person acting as a group (as defined in Treasury Regulations section 1.409A-3(i)(5)(vi)(D)) acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Company or Bank possessing 30 percent or more of the total voting power of the stock of the Company or Bank, or (ii) a majority of the members of the Company's or Bank's board of directors is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Company's or Bank's board of directors prior to the date of the appointment or election, provided that this subsection "(ii)" is inapplicable where a majority shareholder of the Company or Bank is another corporation. (c) A change in a substantial portion of the Company's or Bank's assets occurs on the date that any one person or more than one person acting as a group (as defined in Treasury Regulations section 1.409A-3(i)(5)(vii)(C)) acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Company or Bank that have a total gross fair market value equal to or more than 40 percent of the total gross fair market value of (i) all of the assets of the Company or Bank, or (ii) the value of the assets being disposed of, either of which is determined without regard to any liabilities associated with such assets. For all purposes hereunder, the definition of Change in Control shall be construed to be consistent with the requirements of Treasury Regulations section 1.409A-3(i)(5), except to the extent that such regulations are superseded by subsequent guidance. 3. PAYMENTS TO EXECUTIVE UPON CHANGE IN CONTROL (a) Upon the occurrence of a Change in Control (and even if the Executive's employment will not terminate as a result of such Change in Control), the Company or the Bank shall pay the Executive (or in the event of his subsequent death, his estate), a cash lump sum equal to 2.999 of the Executive's "base amount" as calculated under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") (or any successor thereto); provided, however, that such amounts shall be subject to applicable withholding taxes. Such payment shall be made on the effective date of the Change in Control or within ten (10) business days thereafter. "Base amount" generally means the Executive's average annual compensation for services performed for the Company and the Bank which was includible in the Executive's gross income for the most recent five (5) taxable years ending before the date of the Change in Control. (b) Upon the occurrence of a Change in Control, the Executive will have such rights as specified in any other employee benefit plan (including, but not limited to, equity compensation plans). (c) Notwithstanding the preceding paragraphs of this Section 3, in no event shall the aggregate payments or benefits to be made or afforded to the Executive (the "Change in Control Benefits") constitute an "excess parachute payment" under Code Section 280G, and in order to avoid such a result, Change in Control Benefits will be reduced, if necessary, 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 Code Section 280G. The allocation of the reduction required 2 hereby among Change in Control Benefits provided by the preceding paragraphs of this Section 3 shall be determined by the Executive. (d) Upon the occurrence of a Change in Control, the acquirer shall be obligated to provide non-taxable health insurance coverage to the Executive and his dependents, at no cost to the Executive, for a period of thirty-six (36) months from the date of the Change in Control at a level comparable to the health benefits provided to the Executive and his dependents by the Company and/or the Bank immediately prior to the Change in Control. Such health insurance benefits shall not be subject to the reduction described in Section 3(c). 4. 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 or the Bank, provided, however, that in the event that the payment of any amounts due under Section 3 above is made by the Bank, such payment shall offset the payment due from the Company hereunder. 5. 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 Company, 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. 6. 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, the Bank and their respective successors and assigns. 7. 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 3 constitute a waiver of such term or condition for the future or as to any act other than that specifically waived. 8. REQUIRED PROVISIONS Notwithstanding anything herein contained to the contrary, any payments to Executive by the Company or the Bank, whether pursuant to this Agreement or otherwise, are subject to and conditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and the regulations promulgated thereunder in 12 C.F.R. Part 359. 9. 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. 10. 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. 11. GOVERNING LAW (a) The validity, interpretation, performance, and enforcement of this Agreement shall be governed by the laws of the State of New Jersey. (b) 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 Judicial Mediation and Arbitration Systems (JAMS) then in effect. Judgment may be entered on the arbitrator's award in any court having jurisdiction. 12. 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 or the Bank if the Executive is successful on the merits pursuant to a legal judgment, arbitration or settlement. Such reimbursement shall occur no later than sixty (60) days after the end of the year in which the dispute is resolved in Executive's favor. 13. SUCCESSOR TO THE COMPANY OR BANK The Company and 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 Company or the Bank, expressly and unconditionally to assume and agree to perform the Company's or the Bank's obligations under this Agreement, in the same manner and to the same extent that 5 the Company or the Bank would be required to perform if no such succession or assignment had taken place. 14. SIGNATURES IN WITNESS WHEREOF, the Company and the Bank have caused this Agreement to be executed by its duly authorized officers, and the Executive has signed this Agreement, on the day and date first above written. BCB BANCORP, INC. By: /s/ Mark D. Hogan ------------------------------------ BCB COMMUNITY BANK By: /s/ Mark D. Hogan ------------------------------------ EXECUTIVE By: /s/ James E. Collins ------------------------------------ James E. Collins Senior Lending Officer EX-10.4 5 form8k_exh104-121208.txt EXEC AGR MINDIAK BCB BANCORP, INC. EXECUTIVE AGREEMENT WHEREAS, DONALD MINDIAK ("Executive") and BCB BANCORP, INC. (the "Company") and BCB COMMUNITY BANK (the "Bank") have entered into an Executive Agreement ("Executive Agreement") to guarantee and ensure that the Executive shall receive the full value of the benefits to which he is entitled under various benefit plans sponsored by the Company or by the Bank in which the Executive is a participant; and WHEREAS, tax law provisions relating to "golden parachute payments" could have the effect of reducing the benefits otherwise promised to Executive under the various benefit plans sponsored by the Company or the Bank as a result of a Change in Control of the Company or the Bank, either as the result of cut-backs in the benefit due to restrictions imposed by the Company or the Bank's regulators or the imposition of an excise tax on the deemed "excess parachute payment"; and WHEREAS, the Board believes that this Executive Agreement is in the best interests of the Company and the Bank and their shareholders and will provide the benefits intended to be provided to Executive in the event of a change in control of the Company or the Bank, without any reduction because of tax code "penalties" or excise taxes relating to a change in control; and WHEREAS, Section 409A of the Internal Revenue Code ("Code") necessitates certain changes to this Executive Agreement and the Bank and Executive desire to amend this Executive Agreement to comply with this Code Section. NOW, THEREFORE, in consideration of the mutual covenants herein contained, and upon the other terms and conditions hereinafter provided, the parties hereto hereby agree as follows: 1. In the event of a Change in Control (as defined in the Change in Control Agreement between the Company and the Executive) of the Bank or the Company, the Executive shall be entitled to receive, pursuant to this Executive Agreement, an amount payable by the Company or the Bank, in addition to any compensation or benefits otherwise paid by the Bank or the Company, which shall equal the difference, if any, between (i) the amount that would be paid by the Company or the Bank under the terms of the various benefit plans without regard to any reduction that may be required or imposed by any regulatory authority having jurisdiction over the Company or the Bank, and (ii) the amount that is actually paid to or for the benefit of the Executive by the Company or the Bank under the terms of the various benefit plans. 2. In addition, in each calendar year that Executive is entitled to receive payments or benefits under the provisions of a benefit plan and this Executive Agreement, the independent accountants of the Company or the Bank shall determine if an excess parachute payment (as defined in Section 4999 of the Code) exists. Such determination shall be made after taking any reductions permitted pursuant to Section 280G of the Code and the regulations thereunder. Any amount determined to be an excess parachute payment after taking into account such reductions shall be hereafter referred to as the "Initial Excess Parachute Payment." As soon as practicable after a Change in Control, the Initial Excess Parachute Payment shall be determined. Upon the Date of Termination following a Change in Control, the Company or the Bank shall pay Executive, subject to applicable withholding requirements under applicable state or federal law an amount equal to: (i) twenty (20) percent of the Initial Excess Parachute Payment (or such other amount equal to the tax imposed under Section 4999 of the Code), and (ii) such additional amount (tax allowance) as may be necessary to compensate Executive for the payment by Executive of state and federal income and excise taxes on the payment provided under Clause (i) and on any payments under this Clause (ii). In computing such tax allowance, the payment to be made under Clause (i) shall be multiplied by the "gross up percentage" ("GUP"). The GUP shall be determined as follows: Tax Rate GUP = --------------- 1- Tax Rate The Tax Rate for purposes of computing the GUP shall be the highest marginal federal and state income and employment-related tax rate, including any applicable excise tax rate, applicable to the Executive in the year in which the payment under Clause (i) is made. Notwithstanding the foregoing, any payment pursuant to this Executive Agreement shall be made no later than sixty (60) days after the date on which the Executive remits any excise tax to the required taxing authority. 3. Notwithstanding the foregoing, if it shall subsequently be determined in a final judicial determination or a final administrative settlement to which Executive is a party that the excess parachute payment as defined in Section 4999 of the Code, reduced as described above, is different from the Initial Excess Parachute Payment (such different amount being hereafter referred to as the "Determinative Excess Parachute Payment") then the Company or Bank's independent accountants shall determine the amount (the "Adjustment Amount") the Executive must pay to the Company or Bank or the Company or Bank must pay to the Executive in order to put the Executive (or the Company or Bank, as the case may be) in the same position as the Executive (or the Company or Bank, as the case may be) would have been if the Initial Excess Parachute Payment had been equal to the Determinative Excess Parachute Payment. In determining the Adjustment Amount, the independent accountants shall take into account any and all taxes (including any penalties and interest) paid by or for Executive or refunded to Executive or for Executive's benefit. As soon as practicable after the Adjustment Amount has been so determined, the Company or the Bank shall pay the Adjustment Amount to Executive or the Executive shall repay the Adjustment Amount to the Company or Bank, as the case may be. The purpose of this paragraph is to assure that (i) the Executive is not paid more as reimbursement for the golden parachute excise tax than it may ultimately be determined is necessary to make him whole, and (ii) if it is subsequently determined that additional golden parachute excise tax is owed by him, additional reimbursement payments will be made to him to make him whole for the additional excise tax. 2 4. In each calendar year that Executive receives payments or benefits under one or more benefit plans sponsored by the Bank or the Company, Executive shall report on his state and federal income tax returns such information as is consistent with the determination made by the independent accountants of the Company or Bank as described above. The Company and the Bank shall indemnify and hold Executive harmless from any and all losses, costs and expenses (including without limitation, reasonable attorney's fees, interest, fines and penalties) that Executive incurs as a result of so reporting such information. Executive shall promptly notify the Company or the Bank in writing whenever the Executive receives notice of the institution of a judicial or administrative proceeding, formal or informal, in which the federal tax treatment under Section 4999 of the Code of any amount paid or payable under this Supplemental Agreement is being reviewed or is in dispute. The Company or the Bank shall assume control at its expense over all legal and accounting matters pertaining to such federal tax treatment (except to the extent necessary or appropriate for Executive to resolve any such proceeding with respect to any matter unrelated to amounts paid or payable pursuant to this contract). The Executive shall cooperate fully with the Company or the Bank in any such proceeding. The Executive shall not enter into any compromise or settlement or otherwise prejudice any rights the Company or the Bank may have in connection therewith without prior consent to the Company or Bank. 5. This Executive Agreement shall be binding on the Company, the Bank, their successors and assigns and the benefits hereunder shall inure to the benefit of Executive, his heirs and beneficiaries. 3 IN WITNESS WHEREOF, the Company, the Bank, and the Executive have caused this Executive Agreement to be executed as of the 10th day of December, 2008. BCB BANCORP, INC. By: /s/ Mark D. Hogan ------------------------------------ BCB COMMUNITY BANK By: /s/ Mark D. Hogan ------------------------------------ EXECUTIVE By: /s/ Donald Mindiak ----------------------------------- Donald Mindiak President, Chief Executive Officer, and Chief Financial Officer EX-10.5 6 form8k_exh105-121208.txt EXEC AGR COUGHLIN BCB BANCORP, INC. EXECUTIVE AGREEMENT WHEREAS, THOMAS M. COUGHLIN ("Executive") and BCB BANCORP, INC. (the "Company") and BCB COMMUNITY BANK (the "Bank") have entered into an Executive Agreement ("Executive Agreement") to guarantee and ensure that the Executive shall receive the full value of the benefits to which he is entitled under various benefit plans sponsored by the Company or by the Bank in which the Executive is a participant; and WHEREAS, tax law provisions relating to "golden parachute payments" could have the effect of reducing the benefits otherwise promised to Executive under the various benefit plans sponsored by the Company or the Bank as a result of a Change in Control of the Company or the Bank, either as the result of cut-backs in the benefit due to restrictions imposed by the Company or the Bank's regulators or the imposition of an excise tax on the deemed "excess parachute payment"; and WHEREAS, the Board believes that this Executive Agreement is in the best interests of the Company and the Bank and their shareholders and will provide the benefits intended to be provided to Executive in the event of a change in control of the Company or the Bank, without any reduction because of tax code "penalties" or excise taxes relating to a change in control; and WHEREAS, Section 409A of the Internal Revenue Code ("Code") necessitates certain changes to this Executive Agreement and the Bank and Executive desire to amend this Executive Agreement to comply with this Code Section. NOW, THEREFORE, in consideration of the mutual covenants herein contained, and upon the other terms and conditions hereinafter provided, the parties hereto hereby agree as follows: 1. In the event of a Change in Control (as defined in the Change in Control Agreement between the Company and the Executive) of the Bank or the Company, the Executive shall be entitled to receive, pursuant to this Executive Agreement, an amount payable by the Company or the Bank, in addition to any compensation or benefits otherwise paid by the Bank or the Company, which shall equal the difference, if any, between (i) the amount that would be paid by the Company or the Bank under the terms of the various benefit plans without regard to any reduction that may be required or imposed by any regulatory authority having jurisdiction over the Company or the Bank, and (ii) the amount that is actually paid to or for the benefit of the Executive by the Company or the Bank under the terms of the various benefit plans. 2. In addition, in each calendar year that Executive is entitled to receive payments or benefits under the provisions of a benefit plan and this Executive Agreement, the independent accountants of the Company or the Bank shall determine if an excess parachute payment (as defined in Code Section 4999 of the Code) exists. Such determination shall be made after taking any reductions permitted pursuant to Section 280G of the Code and the regulations thereunder. Any amount determined to be an excess parachute payment after taking into account such reductions shall be hereafter referred to as the "Initial Excess Parachute Payment." As soon as practicable after a Change in Control, the Initial Excess Parachute Payment shall be determined. Upon the Date of Termination following a Change in Control, the Company or the Bank shall pay Executive, subject to applicable withholding requirements under applicable state or federal law an amount equal to: (i) twenty (20) percent of the Initial Excess Parachute Payment (or such other amount equal to the tax imposed under Section 4999 of the Code), and (ii) such additional amount (tax allowance) as may be necessary to compensate Executive for the payment by Executive of state and federal income and excise taxes on the payment provided under Clause (i) and on any payments under this Clause (ii). In computing such tax allowance, the payment to be made under Clause (i) shall be multiplied by the "gross up percentage" ("GUP"). The GUP shall be determined as follows: Tax Rate GUP = --------------- 1- Tax Rate The Tax Rate for purposes of computing the GUP shall be the highest marginal federal and state income and employment-related tax rate, including any applicable excise tax rate, applicable to the Executive in the year in which the payment under Clause (i) is made. Notwithstanding the foregoing, any payment pursuant to this Executive Agreement shall be made no later than sixty (60) days after the date on which the Executive remits any excise tax to the required taxing authority. 3. Notwithstanding the foregoing, if it shall subsequently be determined in a final judicial determination or a final administrative settlement to which Executive is a party that the excess parachute payment as defined in Section 4999 of the Code, reduced as described above, is different from the Initial Excess Parachute Payment (such different amount being hereafter referred to as the "Determinative Excess Parachute Payment") then the Company or Bank's independent accountants shall determine the amount (the "Adjustment Amount") the Executive must pay to the Company or Bank or the Company or Bank must pay to the Executive in order to put the Executive (or the Company or Bank, as the case may be) in the same position as the Executive (or the Company or Bank, as the case may be) would have been if the Initial Excess Parachute Payment had been equal to the Determinative Excess Parachute Payment. In determining the Adjustment Amount, the independent accountants shall take into account any and all taxes (including any penalties and interest) paid by or for Executive or refunded to Executive or for Executive's benefit. As soon as practicable after the Adjustment Amount has been so determined, the Company or the Bank shall pay the Adjustment Amount to Executive or the Executive shall repay the Adjustment Amount to the Company or Bank, as the case may be. The purpose of this paragraph is to assure that (i) the Executive is not paid more as reimbursement for the golden parachute excise tax than it may ultimately be determined is necessary to make him whole, and (ii) if it is subsequently determined that additional golden parachute excise tax is owed by him, additional reimbursement payments will be made to him to make him whole for the additional excise tax. 2 4. In each calendar year that Executive receives payments or benefits under one or more benefit plans sponsored by the Bank or the Company, Executive shall report on his state and federal income tax returns such information as is consistent with the determination made by the independent accountants of the Company or Bank as described above. The Company and the Bank shall indemnify and hold Executive harmless from any and all losses, costs and expenses (including without limitation, reasonable attorney's fees, interest, fines and penalties) that Executive incurs as a result of so reporting such information. Executive shall promptly notify the Company or the Bank in writing whenever the Executive receives notice of the institution of a judicial or administrative proceeding, formal or informal, in which the federal tax treatment under Section 4999 of the Code of any amount paid or payable under this Supplemental Agreement is being reviewed or is in dispute. The Company or the Bank shall assume control at its expense over all legal and accounting matters pertaining to such federal tax treatment (except to the extent necessary or appropriate for Executive to resolve any such proceeding with respect to any matter unrelated to amounts paid or payable pursuant to this contract). The Executive shall cooperate fully with the Company or the Bank in any such proceeding. The Executive shall not enter into any compromise or settlement or otherwise prejudice any rights the Company or the Bank may have in connection therewith without prior consent to the Company or Bank. 5. This Executive Agreement shall be binding on the Company, the Bank, their successors and assigns and the benefits hereunder shall inure to the benefit of Executive, his heirs and beneficiaries. 3 IN WITNESS WHEREOF, the Company, the Bank, and the Executive have caused this Executive Agreement to be executed as of the 10th day of December, 2008. BCB BANCORP, INC. By: /s/ Mark D. Hogan ------------------------------------ BCB COMMUNITY BANK By: /s/ Mark D. Hogan ------------------------------------ EXECUTIVE By: /s/ Thomas M. Coughlin ------------------------------------- Thomas M. Coughlin Chief Operating Officer EX-10.6 7 form8k_exh106-121208.txt EXEC AGR COLLINS BCB BANCORP, INC. EXECUTIVE AGREEMENT WHEREAS, JAMES E. COLLINS ("Executive") and BCB BANCORP, INC. (the "Company") and BCB COMMUNITY BANK (the "Bank") have entered into an Executive Agreement ("Executive Agreement") to guarantee and ensure that the Executive shall receive the full value of the benefits to which he is entitled under various benefit plans sponsored by the Company or by the Bank in which the Executive is a participant; and WHEREAS, tax law provisions relating to "golden parachute payments" could have the effect of reducing the benefits otherwise promised to Executive under the various benefit plans sponsored by the Company or the Bank as a result of a Change in Control of the Company or the Bank, either as the result of cut-backs in the benefit due to restrictions imposed by the Company or the Bank's regulators or the imposition of an excise tax on the deemed "excess parachute payment"; and WHEREAS, the Board believes that this Executive Agreement is in the best interests of the Company and the Bank and their shareholders and will provide the benefits intended to be provided to Executive in the event of a change in control of the Company or the Bank, without any reduction because of tax code "penalties" or excise taxes relating to a change in control; and WHEREAS, Section 409A of the Internal Revenue Code ("Code") necessitates certain changes to this Executive Agreement and the Bank and Executive desire to amend this Executive Agreement to comply with this Code Section. NOW, THEREFORE, in consideration of the mutual covenants herein contained, and upon the other terms and conditions hereinafter provided, the parties hereto hereby agree as follows: 1. In the event of a Change in Control (as defined in the Change in Control Agreement between the Company and the Executive) of the Bank or the Company, the Executive shall be entitled to receive, pursuant to this Executive Agreement, an amount payable by the Company or the Bank, in addition to any compensation or benefits otherwise paid by the Bank or the Company, which shall equal the difference, if any, between (i) the amount that would be paid by the Company or the Bank under the terms of the various benefit plans without regard to any reduction that may be required or imposed by any regulatory authority having jurisdiction over the Company or the Bank, and (ii) the amount that is actually paid to or for the benefit of the Executive by the Company or the Bank under the terms of the various benefit plans. 2. In addition, in each calendar year that Executive is entitled to receive payments or benefits under the provisions of a benefit plan and this Executive Agreement, the independent accountants of the Company or the Bank shall determine if an excess parachute payment (as defined in Code Section 4999 of the Code) exists. Such determination shall be made after taking any reductions permitted pursuant to Section 280G of the Code and the regulations thereunder. Any amount determined to be an excess parachute payment after taking into account such reductions shall be hereafter referred to as the "Initial Excess Parachute Payment." As soon as practicable after a Change in Control, the Initial Excess Parachute Payment shall be determined. Upon the Date of Termination following a Change in Control, the Company or the Bank shall pay Executive, subject to applicable withholding requirements under applicable state or federal law an amount equal to: (i) twenty (20) percent of the Initial Excess Parachute Payment (or such other amount equal to the tax imposed under Section 4999 of the Code), and (ii) such additional amount (tax allowance) as may be necessary to compensate Executive for the payment by Executive of state and federal income and excise taxes on the payment provided under Clause (i) and on any payments under this Clause (ii). In computing such tax allowance, the payment to be made under Clause (i) shall be multiplied by the "gross up percentage" ("GUP"). The GUP shall be determined as follows: Tax Rate GUP = --------------- 1- Tax Rate The Tax Rate for purposes of computing the GUP shall be the highest marginal federal and state income and employment-related tax rate, including any applicable excise tax rate, applicable to the Executive in the year in which the payment under Clause (i) is made. Notwithstanding the foregoing, any payment pursuant to this Executive Agreement shall be made no later than sixty (60) days after the date on which the Executive remits any excise tax to the required taxing authority. 3. Notwithstanding the foregoing, if it shall subsequently be determined in a final judicial determination or a final administrative settlement to which Executive is a party that the excess parachute payment as defined in Section 4999 of the Code, reduced as described above, is different from the Initial Excess Parachute Payment (such different amount being hereafter referred to as the "Determinative Excess Parachute Payment") then the Company or Bank's independent accountants shall determine the amount (the "Adjustment Amount") the Executive must pay to the Company or Bank or the Company or Bank must pay to the Executive in order to put the Executive (or the Company or Bank, as the case may be) in the same position as the Executive (or the Company or Bank, as the case may be) would have been if the Initial Excess Parachute Payment had been equal to the Determinative Excess Parachute Payment. In determining the Adjustment Amount, the independent accountants shall take into account any and all taxes (including any penalties and interest) paid by or for Executive or refunded to Executive or for Executive's benefit. As soon as practicable after the Adjustment Amount has been so determined, the Company or the Bank shall pay the Adjustment Amount to Executive or the Executive shall repay the Adjustment Amount to the Company or Bank, as the case may be. The purpose of this paragraph is to assure that (i) the Executive is not paid more as reimbursement for the golden parachute excise tax than it may ultimately be determined is necessary to make him whole, and (ii) if it is subsequently determined that additional golden parachute excise tax is owed by him, additional reimbursement payments will be made to him to make him whole for the additional excise tax. 2 4. In each calendar year that Executive receives payments or benefits under one or more benefit plans sponsored by the Bank or the Company, Executive shall report on his state and federal income tax returns such information as is consistent with the determination made by the independent accountants of the Company or Bank as described above. The Company and the Bank shall indemnify and hold Executive harmless from any and all losses, costs and expenses (including without limitation, reasonable attorney's fees, interest, fines and penalties) that Executive incurs as a result of so reporting such information. Executive shall promptly notify the Company or the Bank in writing whenever the Executive receives notice of the institution of a judicial or administrative proceeding, formal or informal, in which the federal tax treatment under Section 4999 of the Code of any amount paid or payable under this Supplemental Agreement is being reviewed or is in dispute. The Company or the Bank shall assume control at its expense over all legal and accounting matters pertaining to such federal tax treatment (except to the extent necessary or appropriate for Executive to resolve any such proceeding with respect to any matter unrelated to amounts paid or payable pursuant to this contract). The Executive shall cooperate fully with the Company or the Bank in any such proceeding. The Executive shall not enter into any compromise or settlement or otherwise prejudice any rights the Company or the Bank may have in connection therewith without prior consent to the Company or Bank. 5. This Executive Agreement shall be binding on the Company, the Bank, their successors and assigns and the benefits hereunder shall inure to the benefit of Executive, his heirs and beneficiaries. IN WITNESS WHEREOF, the Company, the Bank, and the Executive have caused this Executive Agreement to be executed as of the 10th day of December, 2008. BCB BANCORP, INC. By: /s/ Mark D. Hogan ------------------------------------ BCB COMMUNITY BANK By: /s/ Mark D. Hogan ------------------------------------ EXECUTIVE By: /s/ James E. Collins ------------------------------------- James E. Collins Senior Lending Officer -----END PRIVACY-ENHANCED MESSAGE-----