EXHIBIT 10.4
AGREEMENT
This Agreement is made and entered into as of November 19th, 2001 by
and between Warwick Community Bancorp, Inc., a business corporation organized
and existing under the laws of the State of Delaware and whose principal office
is located at 00 Xxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000 (hereinafter the
"Company") and Xxxxxxx X. Xxxxxxx, residing at 00 Xxxxxxxxx Xxxx, Xxxxxxx, Xxx
Xxxx 00000 (hereinafter the "Executive").
WITNESSETH:
Whereas, the Executive and the Company have entered into a certain
employment agreement dated December 23, 1997 as modified by a certain First
Amendment to Employment Agreement dated December 15, 1998 (collectively referred
to as the "Employment Agreement"), and
Whereas, the Employment Agreement entitled the Executive to certain
severance benefits in the event the Executive's employment with the Company or
The Warwick Savings Bank (hereinafter the "Bank") was terminated for any reason
other than cause, and
Whereas the Executive's employment with the Company was terminated on
July 26, 2001 and with the Bank on July 27, 2001, and
Whereas the Executive's receipt of the benefits described in Section
9(b)(iii), (iv), (v) and (vi) of the agreement have been conditioned upon the
Executive's resignation from any and all positions he holds as an officer,
director or committee member with respect to the Company, the Bank or any
subsidiary or affiliate of either the Company or the Bank, and
Whereas, the Company has elected to require the surrender of options
issued to the Executive under the Company's Stock Option Plan (hereinafter the
"SOP") pursuant to Section 9(b)(vii) of the Employment Agreement, and
Whereas, the Company has elected to require the surrender of shares
awarded to the Executive under the Company's Recognition and Retention Program
pursuant to Section 9(b)(viii) of the Employment Agreement, and
Whereas, the parties hereto are in disagreement with respect to the
Company's ability to condition the receipt of severance benefits upon the
Executive's resignation from all positions he holds as an officer, director or
committee member with the Company, and
Whereas, the parties hereto are also in disagreement with respect to
the exclusion and computation of certain benefits to which the Executive is
entitled to under the Employment Agreement, and
Whereas, the parties hereto desire to resolve any ambiguity with
respect to the Executive's entitlement to severance benefits under the
Employment Agreement, the Executive is willing to resign all positions the
Executive holds as an officer, director or committee member with respect to the
Company, the Bank or any subsidiary or affiliate of either the Company or the
Bank and the parties are willing to settle their dispute with respect to
provisions of the Employment Agreement upon the terms and conditions hereinafter
set forth;
Now therefore, in consideration of the premises and the mutual
covenants and conditions hereinafter set forth, the Company, the Bank and the
Executive hereby agree as follows:
SECTION 1. EXECUTIVE'S RESIGNATION.
The Executive shall and hereby does immediately and irrevocably tender
his resignation from any and all positions he holds as an officer, director,
committee member and any and all other positions held with respect to the
Company, the Bank or any subsidiary or affiliate of either the Company or the
Bank including but not limited to the following positions:
1. Member of the Board of Directors of Warwick Community Bancorp, Inc.
2. Member of the Board of Directors of The Warwick Savings Bank
3. Member of the Board of Directors of the Towne Center Bank
4. Member of the Board of Directors of The Warwick Saving's Foundation
5. President of The Warwick Saving's Foundation
6. Trustee of The Warwick Savings Bank 401k Plan
SECTION 2. EXECUTIVE'S TERMINATION AS EMPLOYEE.
The Executive's termination as an employee of the Company and the Bank
(and any of their affiliates) is effective as of July 27, 2001.
SECTION 3. EXECUTIVE'S RESIGNATION AS MEMBER OF THE BOARD OF DIRECTORS.
The Executive's resignation from all other positions held as an
officer, board member or committee member, including his positions as a Member
of the Board of Directors of the Company and the Bank (and any of their
affiliates) shall be effective as of the date of this agreement.
SECTION 4. PAYMENT OF SEVERANCE BENEFITS.
Within 30 days of the date of this agreement Executive shall receive
and or shall be paid the following severance benefits:
a. Monthly benefits under the Bank's Pension Plan in the amount of
$7,655.82.
b. Monthly benefits under the Bank's Benefit Restoration Plan in the
amount of $2,932.54 .
c. The additional lump sum payment the Executive is entitled to having
attained the age of normal retirement pursuant to the Benefit
Restoration Plan. The amount will be computed and paid to the
Executive on or before February 1, 2002 and is estimated to be
approximately $95,000.00.
d. The lump sum payment due pursuant to Section 9(b)(iv) of the
Employment Agreement in the amount of $146,493.31 within 30 days of
the date of this agreement.
e. The lump sum payment due pursuant to Section 9(b) (v) of the
Employment Agreement in the amount of $ 98,142.55 within 30 days of
the date of this agreement.
f. The lump sum payments due pursuant to Section 9(b)(vi) of the
Employment Agreement in the combined amount of $15,421.06 within 30
days of the date of this agreement.
g. The lump sum payment due pursuant to Section 9(b)(vii) of the
Employment Agreement in the amount of $45,000.00 within 30 days of
the date of this agreement.
h. The sum of $4,000.00 representing the Executive's attorney's fees
incurred in connection with the negotiation of this agreement.
i. The Executive shall offer and the Company shall pay the sum of
$2,500.00 upon redemption of all of the Executive's shares of stock
in the Towne Center Bank. The Executive shall tender all Towne
Center Bank shares of stock in his possession to the bank within 30
days.
j. There are no earned but unpaid director's fees as of the date of
this agreement.
k. The Executive's retainer in connection with his service as a board
member of the Company shall be pro-rated as of the dated of
resignation (i.e. the date of this agreement). The sum of $2,900.00
shall be paid to the Executive within 30 days of the date of this
agreement
l. Pursuant to the Company's Employee Stock Option Plan, the Executive
shall be entitled to an allocation for the year 2001 as a retiree
under the plan documents which shall be distributed by March 31,
2002.
SECTION 5. SURRENDER OF STOCK OPTIONS AND RESTRICTED STOCK.
a. The Executive shall surrender all 100,000 stock options awarded to
the Executive under the Company's Stock Option Plan by
simultaneously executing the Surrender/Cancellation Agreement
attached hereto as Exhibit A.
b. The Company shall, no earlier than January 1, 2002 and no later than
February 1, 2002, pay to the Executive the sum of $54,500.00
representing the lump sum payment required under Section 9(b) (viii)
of the Employment Agreement.
c. The Executive shall surrender the 25,370 remaining unvested shares
awarded under the Company's Recognition and Retention Plan by
simultaneously executing the Surrender/Cancellation Agreement
attached hereto as Exhibit B.
d. The Company shall, no earlier than January 1, 2002 and no later than
February 1, 2002 pay to the Executive the sum of $445,116.65
representing the lump sum payment required under Section 9(b)(ix) of
the Employment Agreement.
SECTION 6. EMPLOYEE BENEFITS.
The Executive shall receive the benefits to which Company or
Bank employees are entitled to as a former employee of the Company and
the Bank including health, hospitalization, medical and dental
insurance benefits but excluding life insurance (collectively referred
to as the "Insurance Benefits") pursuant to Section 9(b)(iii) of the
Employment Agreement. The Company and the Bank reserve the right to
modify the terms of coverage for any of the Company's and the Bank's
Insurance Benefits maintained for the Company's and/or the Bank's
employees at any time in the future. In no event shall the Executive be
entitled to Insurance Benefits in excess of those available to the
Company's or the Bank's employees in the future.
Notwithstanding anything herein to the contrary, the Executive
shall continue to receive life insurance coverage equivalent to the
coverage to which he is entitled to as a former employee of the Company
and the Bank as of July 27, 2001.
SECTION 7. INDEMNIFICATION AND INSURANCE.
The provisions of Section 6 of the Employment Agreement shall
survive the execution of this agreement and are incorporated herein by
reference. However, for the purposes of this Section 7, the Employment
Period, as that phrase is defined in the Employment Agreement, shall be
deemed to end on the date of this agreement.
SECTION 8. GENERAL RELEASES.
This agreement is intended to settle any and all outstanding
issues, claims, liabilities, obligations, and/or defenses between the
parties and upon execution of the agreement, the Executive, the Company
and the Bank shall simultaneously execute general releases in the form
attached hereto as Exhibit C and D respectively.
SECTION 9. COVENANT NOT TO COMPETE.
Intentionally Deleted.
SECTION 10. CONFIDENTIALITY.
Unless he obtains the prior written consent of the Company,
the Executive shall keep confidential and shall refrain from using for
the benefit of himself, or any person or entity other than the Company
or any entity which is a subsidiary of the company or of which the
Company is a subsidiary, any material document or information obtained
from the Company or from its parent or subsidiaries, in the course of
his employment or in his capacity as a member of the board of directors
with any of them concerning their properties, operation or business
(unless such document or information is readily ascertainable from
public or published information or trade sources or has otherwise been
made available to the public through no fault of his own). Nothing in
this section shall prevent the Executive, with or without the Company's
consent, from participating in or disclosing documents or information
in connection with any judicial or administrative investigation,
inquiry or proceeding to the extent that such participation or
disclosure is required under applicable law.
SECTION 11. SUCCESSORS AND ASSIGNS.
This agreement will inure to the benefit of and be binding
upon the Executive, his legal representatives and testate or intestate
distributees, and the Company and the Bank and their respective
successors and assigns, including any successor by merger or
consolidation or a statutory receiver or any other person or firm or
corporation to which all or substantially all of the assets and
business of the Company may be sold or otherwise transferred.
SECTION 12. NOTICES.
Any communication required or permitted to be given under this
agreement shall be in writing and shall be deemed to have been given at
such time as it is delivered personally or five days after mailing if
mailed, postage prepaid by registered or certified mail, return receipt
requested addressed to such party at the address listed below or at
such other address as one such party may by written notice specify to
the other party:
If to the Executive:
Xxxxxxx X. Xxxxxxx
00 Xxxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
With a copy to:
Xxxxxx X. Xxxxx, Esq.
Xxxxxxxxxx, Xxxxx & Xxxxxx, LLP
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
If to the Company or the Bank
Xxxx X. Xxxxx, Chairman of the Board
The Warwick Savings Bank
00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Bonacic, Xxxxxxxx & Krahulik, LLP
0 Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
SECTION 14. ENTIRE AGREEMENT.
This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and supersedes, in its entirety
any and all prior agreements, understandings or representations
relating to the subject matter hereof. No modification of this
agreement shall be valid unless made in writing and signed by the
parties hereto.
SECTION 15. TAX INDEMNIFICATION.
The provisions of Section 12 of the Employment Agreement shall
survive the execution of this agreement and are incorporated herein by
reference.
SECTION 15. GOVERNING LAW.
Except to the extent preempted by federal law, this agreement
shall be governed by the laws of the State of New York applicable to
contracts entered into and to be performed entirely within the State of
New York.
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Xxxxxxx X. Xxxxxxx
Warwick Community Bancorp, Inc.
By:
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Xxxx X. Xxxxx
Chairman of the Board
The Warwick Savings Bank
By:
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Xxxx X. Xxxxx
Chairman of the Board
State of New York:
:ss.
County of Orange:
On the _19th__ day of November in the year 2001, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxxxxx X. Xxxxxxx
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
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Notary Public
State of New York:
:ss.
County of Orange:
On the 19th___ day of November in the year 2001, before me, the undersigned, a
Notary Public in and for said State, personally appeared Xxxx X. Xxxxx
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
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Notary Public
