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QUEENS COUNTY SAVINGS BANK
EMPLOYMENT AGREEMENT
AS AMENDED AND RESTATED
This AGREEMENT as amended and restated effective ___________, 1997, was
first made effective as of November 23, 1993, by and among Queens County Savings
Bank (the "Bank"), a New York chartered savings bank, with its principal
administrative office at 00-00 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx, Xxxxxx Xxxxxx
Bancorp, Inc., a corporation organized under the laws of the State of Delaware
which is the holding company for the Bank (the "Holding Company") and (the
"Executive").
WHEREAS, the Bank wishes to assure itself of the services of
Executive for the period provided in this Agreement; and
WHEREAS, Executive is willing to serve in the employ of the Bank on a
full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, Executive agrees to
serve until December 31, 2000, as of the Bank. The
Executive shall render administrative and management services to the Bank such
as are customarily performed by persons situated in a similar executive
capacity. Failure to reelect Executive as shall constitute a
breach of this Agreement.
2. TERMS.
(a) The period of Executive's employment under this Agreement shall be
deemed to have commenced as of the date first above written (the "Effective
Date") and shall continue for a period of thirty-six (36) full calendar months
thereafter. Commencing with the Effective Date, the term of this Agreement shall
be extended for one day each day until such time as the Board of the Bank or the
Executive elects not to extend the term of the Agreement further by giving
written notice to the other party in accordance with Section 9 of this
Agreement, in which case the term of this Agreement shall be fixed and shall end
on the third anniversary of the date of such written notice; provided, that in
any event, the term of this Agreement shall end on the last day of the month in
which the Executive attains the age of 65. The Board will review the Agreement
and the Executive's performance annually for purposes of determining whether to
give notice not to extend the Agreement and the results thereof shall be
included in the minutes of the Board's meeting.
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(b) During the period of his employment hereunder, except for periods
of absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the Bank and participation in community and civic
organizations; provided, however, that, with the approval of the Board, as
evidenced by a resolution of such Board, from time to time, Executive may serve,
or continue to serve, on the boards of directors of, and hold any other offices
or positions in, companies or organizations, which, in such Board's judgment,
will not present any conflict of interest with the Bank, or materially affect
the performance of Executive's duties pursuant to this Agreement.
(c) Notwithstanding anything herein contained to the contrary: (I)
Executive's employment with the Bank may be terminated by the Bank or Executive
during the term of this Agreement, subject to the terms and conditions of this
Agreement; and (ii) nothing in this Agreement shall mandate or prohibit a
continuation of Executive's employment following the expiration of the term of
this Agreement upon such terms and conditions as the Board and executive may
mutually agree.
(d) Upon the termination of Executive's employment with the Bank, the
daily extensions provided pursuant to section 2(a), shall cease (if such
extensions have not previously ceased), and, if such termination is under
circumstances described in section 4(a), the term "remaining term of the
Agreement" in section 4(b) shall mean the period of time commencing from the
date of such termination and ending on the last day of the employment period
computed with reference to all extensions prior to such termination.
3. COMPENSATION AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute
the salary and benefits paid for the duties described in Section 1. The Bank
shall pay Executive as compensation a salary of not less than per year
("Base Salary"). Base Salary shall include any amounts of compensation
deferred by Executive under a qualified plan maintained by the Bank. Such Base
Salary shall be payable bi-weekly. During the period of this Agreement,
Executive's Base Salary shall be reviewed at least annually; the first such
review will be made no later than one year from the date of this Agreement. Such
review shall be conducted by the Salary and Personnel Committee designated by
the Board, and the Board may increase Executive's Base Salary. Any increase
shall become the "Base Salary" for purposes of this Agreement. In no event shall
Executive's annual rate of salary under this Agreement in effect at a
particular time be reduced without his prior written consent. In addition to the
Base Salary provided in this Section 3(a), the Bank shall also provide Executive
at no cost to Executive with all such other benefits as are provided uniformly
to permanent full-time employees of the Bank.
(b) The Bank will provide Executive with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from immediately prior
to the beginning of the term of this Agreement and the
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Bank will not, without Executive's prior written consent, make any changes in
such plans, arrangements or perquisites which would adversely affect Executive's
rights or benefits thereunder provided, however, that the Bank may make changes
to such plans, agreements or perquisites generally provided on a
nondiscriminatory basis to all employees without the Executive's prior written
consent. Without limiting the generality of the foregoing provisions of this
Subsection (b), Executive will be entitled to participate in or receive benefits
under any employee benefit plans including but not limited to, retirement plans,
supplemental retirement plans, pension plans, profit-sharing plans,
health-and-accident plan, medical coverage or any other employee benefit plan or
arrangement made available by the Bank in the future to its senior executives
and key management employees, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and arrangements.
Executive will be entitled to incentive compensation and bonuses as provided in
any plan of the Bank in which Executive is eligible to participate. Nothing paid
to the Executive under any such plan or arrangement will be deemed to be in lieu
of other compensation to which the Executive is entitled under this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of
this Section 3 and other compensation provided for by paragraph (b) of this
Section 3, the Bank shall pay or reimburse Executive for all reasonable travel
and other reasonable expenses incurred by Executive performing his obligations
under this Agreement and may provide such additional compensation in such form
and such amounts as the Board may from time to time determine.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
The provisions of this Section shall in all respects be subject to the
terms and conditions stated in Section 8.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the Bank or the Holding Company of Executive's full-time
employment hereunder for any reason other than a Change in Control, as defined
in Section 5(a) hereof; upon Retirement, as defined in Section 7 hereof; for
Disability, as defined in Section 6 hereof; or for Cause, as defined in Section
8 hereof; (ii) Executive's resignation from the Bank's employ, upon any (A)
failure to elect or reelect or to appoint or reappoint Executive as
of the Bank or the Holding Company unless consented to by the Executive, (B)
material change in Executive's function, duties, or responsibilities, which
change would cause Executive's position to become one of lesser responsibility,
importance, or scope from the position and attributes thereof described in
Section 1, above, (and any such material change shall be deemed a continuing
breach of this Agreement), (C) a relocation of Executive's principal place of
employment by more than 30 miles from its location at the effective date of this
Agreement, (D) liquidation or dissolution of the Bank or Holding Company, or (E)
breach of this Agreement by the Bank. Upon the occurrence of any event described
in clauses (A), (B), (C), (D) or (E),
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above, Executive shall have the right to elect to terminate his employment under
this Agreement by resignation upon not less than thirty (30) days prior written
notice given within a reasonable period of time not to exceed, except in case of
a continuing breach, four calendar months after the event giving rise to said
right to elect.
(b) Upon the occurrence of an Event of Termination, on the Date of
Termination, as defined in Section 9, the Bank shall be obligated to pay
Executive, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or liquidated
damages, or both, a sum equal to the payments due to the Executive for the
remaining term of the Agreement including Base Salary, bonuses and any other
cash or deferred compensation paid or to be paid to the Executive, and the
amount of any benefits received or to be received pursuant to any employee
benefit plans maintained by the Bank or the Holding Company during the term of
the Agreement. At the election of the Executive, which election is to be made
within thirty (30) days of the Executive's Date of Termination, such payments
shall be made in a lump sum or paid monthly during the remaining term of the
agreement following the Executive's termination. In the event that no election
is made, payment to the Executive will be made on a monthly basis during the
remaining term of the agreement. Such payments shall not be reduced in the event
the Executive obtains other employment following termination of employment.
(c) Upon the occurrence of an Event of Termination, the Bank will cause
to be continued life, medical, dental and disability coverage substantially
identical to the coverage maintained by the Bank for Executive prior to his
termination, except to the extent such coverage may be changed in its
application to all Bank employees. Such coverage shall cease upon the expiration
of the remaining term of this Agreement.
(d) In the event that the Executive is receiving monthly payments
pursuant to Section 4(b) hereof, on an annual basis, thereafter, between the
dates of January 1 and January 31 of each year, 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.
5. CHANGE IN CONTROL.
(a) No benefit shall be payable under this Section 5 unless there shall
have been a Change in Control of the Bank or the Holding Company, as set forth
below. For purposes of this Plan, a "Change in Control" of the Bank or the
Holding Company shall mean an event of a nature that; (i) would be required to
be reported in response to Item 1 of the current report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); or (ii) results in a Change in
Control of the Bank or the Holding Company within the meaning of the Change in
Bank Control Act and the Rules and Regulations promulgated by the Federal
Deposit Insurance Corporation ("FDIC") at 12 C.F.R. Section 303.4(a) with
respect to the Bank and the Board of Governors of the Federal Reserve System
("FRB") at 12 C.F.R. Section 225.41(b) with respect to the Holding Company, as
in effect on the date hereof; or (iii)
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results in a transaction requiring prior FRB approval under the Bank Holding
Company Act of 1956 and the regulations promulgated thereunder by the FRB at 12
C.F.R. Section 225.11, as in effect on the date hereof except for the Holding
Company's acquisition of the Bank; or (iv) without limitation such a Change in
Control shall be deemed to have occurred at such time as (A) any "person" (as
the term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Bank or the Holding Company
representing 20% or more of the Bank's or the Holding Company's outstanding
securities except for any securities of the Bank purchased by the Holding
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; or
(B) individuals who constitute 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 Holding 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
Holding Company or similar transaction occurs in which the Bank or Holding
Company is not the resulting entity; (D) a proxy statement shall be distributed
soliciting proxies from shareholders of the Holding Company, by someone other
than the current management of the company, seeking stockholder approval of a
plan of reorganization, merger or consolidation of the Holding Company or Bank
or similar transaction with one or more corporations as a result of which the
outstanding shares of the class of securities then subject to the plan or
transaction are exchanged for or converted into cash or property or securities
not issued by the Bank or the Holding Company; or (E) a tender offer is made for
20% or more of the voting securities of the Bank or the Holding Company.
(b) If any of the events described in Section 5(a) hereof constituting
a Change in Control have occurred or the Board has determined that a Change in
Control has occurred, notwithstanding the provisions of Section 2(a), the term
of this Agreement shall be deemed to have commenced as of the date of the Change
in Control and shall continue for a period of thirty-six (36) full calendar
months thereafter. Commencing on the date of the Change in Control, the term of
this Agreement shall be extended for one day each day.
(c) If any of the events described in Section 5(a) hereof constituting
a Change in Control have occurred or the Board has determined that a Change in
Control has occurred, Executive shall be entitled to the benefits provided in
paragraphs (d),(e),(f) and (g) of this Section 5 upon his subsequent termination
of employment at any time during the term of this Agreement (regardless of
whether such termination results from his dismissal or his resignation at any
time during the term of this Agreement following any demotion, loss of title,
office or significant authority or responsibility, reduction in 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), unless such termination is because of his death, termination for Cause
or termination for Disability.
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(d) Upon the occurrence of a Change in Control followed by the
Executive's termination of employment, the bank shall pay Executive, or in the
event of his subsequent death, his beneficiary or beneficiaries, or his estate,
as the case may be, as severance pay or liquidated damages, or both, a sum equal
to the greater of the payments due for the remaining term of the Agreement or
three (3) times the average of the three (3) preceding years' Base Salary,
including bonuses and any other cash or deferred compensation paid or to be paid
to the Executive during such years, and the amount of any contributions made or
to be made, on behalf of the Executive, to any employee benefit plans maintained
by the Bank during such years, except to the extent such benefits are otherwise
payable to the Executive under such plans upon a Change in Control. For purposes
of determining the benefit due under this Section 5(d), when calculating the
payments due for the remaining term of this Agreement, it shall be assumed that
for each year of the remaining term of the Agreement, the Executive will receive
(i) an annual increase in Base Salary equal to the average increase received in
the preceding three years, (ii) the maximum bonus payable, and (iii) the maximum
contribution by or on behalf of the Executive with respect to any employee
benefit plans maintained by the Bank. At the election of the Executive, which
election is to be made within thirty (30) days of the Date of Termination, such
payment may be made in a lump sum or paid in equal monthly installments during
the thirty-six (36) months following the Executive's termination. In the event
that no election is made, payment to the Executive will be made on a monthly
basis during the remaining term of the Agreement.
(e) Upon the occurrence of a Change in Control followed by the
Executive's termination of employment, the Bank will cause to be continued life,
medical, dental and disability coverage substantially identical to the coverage
maintained by the Bank for Executive prior to his severance. Such coverage and
payments shall cease upon the expiration of thirty-six (36) months.
(f) In the event that the Executive is receiving monthly payments
pursuant to Section 5)(d) hereof, on an annual basis, thereafter, between the
dates of January 1 and January 31 of each year, 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.
(g) In each calendar year that Executive is entitled to receive
payments or benefits under the provisions of his Employment Agreement with the
Holding Company and this Employment Agreement, the Holding Company shall
determine if an excess parachute payment (as defined in Section 4999 of the
Internal Revenue Code of 1986, as amended, and any successor provision thereto,
(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 Holding Company shall pay
Executive, subject to applicable withholding requirements under applicable city,
state or federal law an amount equal to:
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(1) 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
(2) such additional amount (tax allowance) as may be necessary to
compensate Executive for the payment by Executive of city, state and
federal income and excise taxes on the payment provided under clause
(1) and on any payments under this Clause (2). In computing such tax
allowance, the payment to be made under Clause (1) 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 sum of
the highest marginal federal, state and city income and
employment-related tax rates, including any applicable excise tax
rates, applicable to the Executive in the year in which the payment
under Clause (1) is made.
(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 more than
the Initial Excess Parachute Payment (such different amount being hereafter
referred to as the "Determinative Excess Parachute Payment") then the Holding
Company's independent accountants shall determine the amount (the "Adjustment
Amount") the Holding Company must pay to the Executive in order to put the
Executive in the same position as the Executive would have been if the Initial
Excess Parachute Payment had been equal to the Determinative Excess Parachute
Payment. In determining the Adjustment Amount, independent accountants of the
Holding Company 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 Holding Company shall pay the Adjustment Amount to Executive.
In no event however, shall Executive make any payment under this paragraph to
the Holding Company.
6. TERMINATION FOR DISABILITY.
(a) If, as a result of Executive' incapacity due to physical or mental
illness, such incapacity being determined by a doctor selected by the Bank, he
shall have been absent from his duties with the Bank on a full-time basis for
six (6) consecutive months, and within thirty (30) days after written notice of
potential termination is given, he shall not have returned to
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the full-time performance of his duties, the Bank may terminate Executive's
employment for "Disability."
(b) The Bank will pay Executive, as disability pay, a bi-weekly payment
equal to seventy-five percent (75%) of Executive's bi-weekly rate of Base Salary
on the effective date of such termination. These disability payments shall
commence on the effective date of Executive's termination and will end on the
earlier of (i) the date Executive returns to the full-time employment of the
Bank in the same capacity as he was employed prior to his termination for
Disability and pursuant to an employment agreement between Executive and the
Bank; (ii) Executive' full-time employment by another employer; (iii) Executive
attaining the normal age of retirement or receiving benefits under the Bank's
Defined Benefit Plan; (iv) Executive's death; or (v) the expiration of the term
of this Agreement. Notwithstanding any other provision to the contrary, the Bank
may apply any proceeds from disability income insurance for Executive which was
paid for by the Bank or the Holding Company as partial satisfaction of its
obligation under this Section.
(c) The Bank will cause to be continued life, medical, dental and
disability coverage substantially identical to the coverage maintained by the
Bank for Executive prior to his termination for Disability. This coverage and
payments shall cease upon the earlier of (i) the date Executive returns to the
full-time employment of the Bank, in the same capacity as he was employed prior
to his termination for Disability and pursuant to an employment agreement
between Executive and the Bank; (ii) Executive's full-time employment by another
employer; (iii) Executive's attaining the normal age of retirement or receiving
benefits under the Bank's Defined Benefit Plan; (iv) the Executive's death; or
(v) the expiration of the time of this Agreement.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period during which
Executive is incapable of performing his duties hereunder by reason of temporary
disability.
7. TERMINATION UPON RETIREMENT.
Termination by the Bank of the Executive based on "Retirement" shall
mean termination in accordance with the Bank's retirement policy or in
accordance with any retirement arrangement established with Executive's consent
with respect to him. Upon termination of Executive upon Retirement, Executive
shall be entitled to all benefits under any retirement plan of the Bank and
other plans to which Executive is a party.
8. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination because of the
Executive's personal dishonesty which results in a loss to the Bank or the
Holding Company, intentional failure to perform stated duties, willful
misconduct, any breach of fiduciary duty involving personal profit, willful
violation of any law, rule, regulation (other than traffic violations or
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similar offenses) or final cease-and-desist order which results in substantial
loss to the Bank or the Holding Company. For purposes of this Section, no act,
or the failure to act, on Executive's part, shall be "willful" unless done, or
omitted to be done, not in good faith and without reasonable belief that the
action was in the best interests of the Bank or the Holding Company.
Notwithstanding the foregoing, Executive shall not be deemed to have been
Terminated for Cause unless and until there shall have been delivered to him a
Notice of Termination which shall include a copy of a resolution duly adopted by
the affirmative vote of not less than three-fourths of the members of the Board
at a meeting of the Board called and held for that purpose (after reasonable
notice to Executive and an opportunity for him, together with counsel, to be
heard before the Board), finding that in the good faith opinion of the Board,
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 and related limited rights granted to Executive under
any stock option plan or unvested awards granted to Executive under any RRP of
the Bank, the Holding Company or any subsidiary or affiliate thereof, shall
become null and void effective upon Executive's receipt of Notice of Termination
for Cause pursuant to Section 9 hereof; and shall not be exercisable by or
delivered to Executive at any time subsequent to such Termination for Cause.
9. NOTICE.
(a) Any purported termination by the Bank or by 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 Executive's employment under the provision so
indicated.
(b) Subject to section 9(c), "Date of Termination" shall mean (A) if
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 his duties on a full-time basis during such thirty (30) days
period), and (B) if his employment is terminated for any other reason, the date
specified in the Notice of Termination (which, in the case of a Termination for
Cause, shall be immediate).
(c) If, within thirty (30) days after any Notice of Termination is
given, the party receiving such notice of Termination notifies the other party
that a dispute exists concerning the termination, except upon the occurrence of
a Change in Control and voluntary termination by the Executive in which case the
date of termination shall be the date specified in the Notice, the Date of
Termination shall be date on which the dispute is finally determined, either by
mutual written agreement of the parties, by a binding arbitration award, or by a
final judgment, order or decree of a court of competent jurisdiction (the time
for appeal there from having expired and no appeal having been perfected) and
provided further that the Date of Termination shall be extended by a notice of
dispute only if such notice is given in good faith
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and the party giving such notice pursues the resolution of such dispute with
reasonable diligence. Notwithstanding the pendency of any such dispute, the Bank
will continue to pay Executive his full compensation in effect when the notice
giving rise to the dispute was given (including, but not limited to, Base
Salary) and continue him as a participant in all compensation, benefit and
insurance plans in which he was participating when the notice of dispute was
given, until the dispute is finally resolved in accordance with this Agreement.
Amounts paid under this Section are in addition to all other amounts due under
this Agreement and shall not be offset against or reduce any other amounts due
under this Agreement.
(d) 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 Executive's right to compensation or other benefits under this
Agreement or under any other benefit or compensation plans or programs
maintained by the Bank from time to time. Executive shall not have the right to
receive compensation or other benefits for any period after Termination for
Cause as defined in Section 8 hereinabove.
10. POST-TERMINATION OBLIGATIONS.
(a) All payments and benefits to Executive under this Agreement shall
be subject to Executive's compliance with paragraph (b) of this Section 10
during the term of this Agreement and for one (1) full year after the expiration
or termination hereof.
(b) Executive shall, upon reasonable notice, furnish such information
and assistance to the Bank as may reasonably be required by the Bank in
connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party. The Bank shall reimburse the Executive
for reasonable expenses incurred in connection with furnishing such information
and assistance to the Bank.
11. NON-DISCLOSURE OF BANK BUSINESS
Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Bank and affiliates
thereof, as it may exist from time to time, is a valuable, special and unique
asset of the business of the Bank. Executive will not, during or after the term
of his employment, disclose any knowledge of the past, present, planned or
considered business activities of the Bank or affiliates thereof to any person,
firm, corporation, or other entity for any reason or purpose whatsoever.
Notwithstanding the foregoing, Executive may disclose any knowledge of banking,
financial and/or economic principles, concepts or ideas which are not solely and
exclusively derived from the business plans and activities of the Bank. In the
event of a breach or threatened breach by the Executive of the provisions of
this Section 11, the Bank will be entitled to an injunction restraining
Executive from disclosing, in whole or in part, the knowledge of the past,
present, planned or considered business activities of the Bank or affiliates
thereof, or from rendering any services to any person, firm, corporation, other
entity to whom such knowledge, in whole
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or in part, has been disclosed or is threatened to be disclosed. Nothing herein
will be construed as prohibiting the Bank from pursuing any other remedies
available to the Bank for such breach or threatened breach, including the
recovery of damages from Executive.
12. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank. The Holding Company, however,
unconditionally guarantees payment and provision of all amounts and benefits due
hereunder to 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 Holding Company.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank and 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 Executive is subject to receiving fewer benefits than
those available to him without reference to this Agreement.
14. EFFECT OF ACTION UNDER HOLDING COMPANY AGREEMENT
Notwithstanding any provision herein to the contrary, to the extent
that payments and benefits, as provided by this Agreement, are paid to or
received by Executive under the Employment Agreement of even date herewith
between Executive and the Holding Company, such compensation payments and
benefits paid by the Holding Company will be subtracted from any amounts due
simultaneously to Executive under similar provisions of this Agreement. Payments
pursuant to this Agreement and the Holding Company Agreement shall be allocated
in proportion to the level of activity and time expended on such activities by
the Executive as determined by the Holding Company and the Bank on a quarterly
basis.
15. 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.
16. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
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(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
17. 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.
18. 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.
19. GOVERNING LAW.
The validity, interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of New York, without
reference to conflicts of law principles.
20. 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 Executive 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
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 under or in connection
with Executive's termination is resolved in favor of the Executive, whether by
judgment, arbitration or settlement, 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 Executive under this
Agreement.
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21. INDEMNIFICATION AND ATTORNEYS' FEES.
(a) The Bank shall indemnify, hold harmless and defend Executive
against reasonable costs, including legal fees, incurred by him in connection
with his consultation with legal counsel or arising out of any action, suit or
proceeding in which he may be involved, as a result of his efforts, in good
faith, to defend or enforce the terms of this Agreement.
(b) In the event any dispute or controversy arising under or in
connection with Executive's termination is resolved in favor of the Executive,
whether by judgment, arbitration or settlement, 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 Executive
under this Agreement.
(c) The Bank shall indemnify, hold harmless and defend Executive for
all acts or omissions taken or not taken by him in good faith while performing
services for the Bank to the same extent and upon the same terms and conditions
as other similarly situated officers and directors of the Bank. If and to the
extent that the Bank maintains, at any time during the Employment Period, an
insurance policy covering the other officers and directors of the Bank against
law suits, the Bank shall use its best efforts to cause Executive to be covered
under such policy upon the same terms and conditions as other similarly situated
officers and directors.
22. 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 Holding Company,
expressly and unconditionally to assume and agree to perform the Bank's
obligations under this Agreement, in the same manner and to the same extent that
the Bank would be required to perform if no such succession or assignment had
taken place.
[Signatures appear on the following page]
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SIGNATURES
IN WITNESS WHEREOF, Queens County Savings Bank and Queens County
Bancorp, Inc. Inc. have caused this Amended and Restated Agreement to be
executed and their seals to be affixed hereunto by their duly authorized
officers and directors, and Executive has signed this Amended and Restated
Agreement, on the __ day of _____________, 1997.
ATTEST: QUEENS COUNTY SAVINGS BANK
___________________ BY: ___________________________
Secretary
[SEAL]
ATTEST: QUEENS COUNTY BANCORP, INC.
(Guarantor)
___________________ BY:_____________________________
Secretary
[SEAL]
WITNESS:
___________________ ________________________________
Executive
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