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Exhibit 10.1
AGREEMENT
EMPLOYMENT AGREEMENT, dated this ____ day of ______ 1997, between
Staten Island Bancorp, Inc., a Delaware corporation (the "Corporation"), Staten
Island Savings Bank, a federally-chartered savings bank and a wholly owned
subsidiary of the Corporation (the "Bank"), and _____________________ (the
"Executive").
WITNESSETH
WHEREAS, the Executive is presently an officer of the Corporation and
the Bank (together the "Employers");
WHEREAS, the Employers desire to be ensured of the Executive's
continued active participation in the business of the Employers; and
WHEREAS, in order to induce the Executive to remain in the employ of
the Employers and in consideration of the Executive's agreeing to remain in the
employ of the Employers, the parties desire to specify the severance benefits
which shall be due the Executive in the event that his employment with the
Employers is terminated under specified circumstances;
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereby agree as follows:
1. DEFINITIONS. The following words and terms shall have the
meanings set forth below for the purposes of this Agreement:
(a) AVERAGE ANNUAL COMPENSATION. The Executive's "Average Annual
Compensation" for purposes of this Agreement shall be deemed to mean the
average Base Salary and bonus paid to the Executive by the Employers or any
subsidiary thereof during the most recent five taxable years preceding the Date
of Termination (or such shorter period as the Executive was employed).
(b) BASE SALARY. "Base Salary" shall have the meaning set forth
in Section 3(a) hereof.
(c) CAUSE. Termination of the Executive's employment for "Cause"
shall mean termination because of personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses) or final
cease-and-desist order or material breach of any provision of this Agreement.
(d) CHANGE IN CONTROL OF THE CORPORATION. "Change in Control of
the Corporation" shall mean the occurrence of any of the following: (i) the
acquisition of control of the
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Corporation as defined in 12 C.F.R. Section 574.4, unless a presumption of
control is successfully rebutted or unless the transaction is exempted by 12
C.F.R. Section 574.3(c)(vii), or any successor to such sections; (ii) an event
that would be required to be reported in response to Item 1(a) of Form 8-K or
Item 6(e) of Schedule 14A of Regulation 14A pursuant to the Securities Exchange
Act of 1934, as amended ("Exchange Act"), or any successor thereto, whether or
not any class of securities of the Corporation is registered under the Exchange
Act; (iii) any "person" (as such 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-under
the Exchange Act), directly or indirectly, of securities of the Corporation
representing 20% or more of the combined voting power of the Corporation's then
outstanding securities; or (iv) during any period of three consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of the Corporation cease for any reason to constitute at least a
majority thereof unless the election, or the nomination for election by
stockholders, of each new director was approved by a vote of at least two-thirds
of the directors then still in office who were directors at the beginning of the
period.
(e) CODE. "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(f) DATE OF TERMINATION. "Date of Termination" shall mean (i) if
the Executive's employment is terminated for Cause or for Disability, the date
specified in the Notice of Termination, and (ii) if the Executive's employment
is terminated for any other reason, the date on which a Notice of Termination
is given or as specified in such Notice.
(g) DISABILITY. Termination by the Employers of the Executive's
employment based on "Disability" shall mean termination because of any physical
or mental impairment which qualifies the Executive for disability benefits
under the applicable long-term disability plan maintained by the Employers or
any subsidiary or, if no such plan applies, which would qualify the Executive
for disability benefits under the Federal Social Security System.
(h) GOOD REASON. Termination by the Executive of the Executive's
employment for "Good Reason" shall mean termination by the Executive following
a Change in Control of the Corporation based on:
(i) Without the Executive's express written consent,
the failure to elect or to re-elect or to appoint or
to re-appoint the Executive to the office of
_______________________ of the Employers or a
material adverse change made by the Employers in the
Executive's functions, duties or responsibilities as
_______________________ of the Employers;
(ii) Without the Executive's express written consent, a
reduction by either of the Employers in the
Executive's Base Salary as the same may be increased
from time to time or, except to the extent permitted
by Section 3(b) hereof, a reduction in the package
of fringe benefits provided to the Executive, taken
as a whole;
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(iii) The principal executive office of either of the
Employers is relocated outside of the Xxxxxxxxx, New
York area or, without the Executive's express written
consent, either of the Employers require the Executive
to be based anywhere other than an area in which the
Employers' principal executive office is located,
except for required travel on business of the Employers
to an extent substantially consistent with the
Executive's present business travel obligations;
(iv) Any purported termination of the Executive's employment
for Cause, Disability or Retirement which is not
effected pursuant to a Notice of Termination satisfying
the requirements of paragraph (j) below; or
(v) The failure by the Employers to obtain the assumption
of and agreement to perform this Agreement by any
successor as contemplated in Section 9 hereof.
(i) IRS. IRS shall mean the Internal Revenue Service.
(j) NOTICE OF TERMINATION. Any purported termination of the
Executive's employment by the Employers for any reason, including without
limitation for Cause, Disability or Retirement, or by the Executive for any
reason, including without limitation for Good Reason, shall be communicated by
written "Notice of Termination" to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a dated notice which (i)
indicates the specific termination provision in this Agreement relied upon,
(ii) sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated, (iii) specifies a Date of Termination, which shall be
not less than thirty (30) nor more than ninety (90) days after such Notice of
Termination is given, except in the case of the Employers' termination of the
Executive's employment for Cause; and (iv) is given in the manner specified in
Section 10 hereof.
(k) RETIREMENT. "Retirement" shall mean voluntary termination by
the Executive in accordance with the Employers' retirement policies, including
early retirement, generally applicable to the Employers' salaried employees.
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2. TERM OF EMPLOYMENT.
(a) The Employers hereby employ the Executive
as________________________ and the Executive hereby accepts said employment and
agrees to render such services to the Employers on the terms and conditions set
forth in this Agreement. Unless extended as provided in this Section 2, this
Agreement shall terminate three (3) years after the date first above written.
Prior to the second annual anniversary of the date first above written and each
annual anniversary thereafter, the Boards of Directors of the Employers shall
consider and review (after taking into account all relevant factors, including
the Executive's performance) a one-year extension of the term of this
Agreement, and the term shall continue to extend each year (beginning with the
second annual anniversary date) if the Boards of Directors so approve such
extension unless the Executive gives written notice to the Employers of the
Executive's election not to extend the term, with such notice to be given not
less than thirty (30) days prior to any such anniversary date. If the Boards
of Directors elect not to extend the term, they shall give written notice of
such decision to the Executive not less than thirty (30) days prior to any such
anniversary date. If any party gives timely notice that the term will not be
extended as of any such annual anniversary date, then this Agreement shall
terminate at the conclusion of its remaining term. References herein to the
term of this Agreement shall refer both to the initial term and successive
terms.
(b) During the term of this Agreement, the Executive shall
perform such executive services for the Employers as is consistent with his
title of _______________________ and from time to time assigned to him by the
Employers' Boards of Directors.
3. COMPENSATION AND BENEFITS.
(a) The Employers shall compensate and pay the Executive for his
services during the term of this Agreement at a minimum base salary of $_______
per year ("Base Salary"), which may be increased from time to time in such
amounts as may be determined by the Boards of Directors of the Employers and
may not be decreased without the Executive's express written consent. In
addition to his Base Salary, the Executive shall be entitled to receive during
the term of this Agreement such bonus payments as may be determined by the
Boards of Directors of the Employers.
(b) During the term of this Agreement, the Executive shall be
entitled to participate in and receive the benefits of any pension or other
retirement benefit plan, profit sharing, stock option, employee stock
ownership, or other plans, benefits and privileges given to employees and
executives of the Employers, to the extent commensurate with his then duties
and responsibilities, as fixed by the Boards of Directors of the Employers.
The Employers shall not make any changes in such plans, benefits or privileges
which would adversely affect the Executive's rights or benefits thereunder,
unless such change occurs pursuant to a program applicable to all executive
officers of the Employers and does not result in a proportionately greater
adverse change in the rights of or benefits to the Executive as compared with
any other executive officer of the Employers. Nothing paid to the Executive
under any plan or arrangement presently in
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effect or made available in the future shall be deemed to be in lieu of the
salary payable to the Executive pursuant to Section 3(a) hereof.
(c) During the term of this Agreement, the Executive shall be
entitled to paid annual vacation in accordance with the policies as established
from time to time by the Boards of Directors of the Employers. The Executive
shall not be entitled to receive any additional compensation from the Employers
for failure to take a vacation, nor shall the Executive be able to accumulate
unused vacation time from one year to the next, except to the extent authorized
by the Boards of Directors of the Employers.
(d) In the event the Executive's employment is terminated due to
Disability or Retirement, the Employers shall provide continued life, medical,
dental and disability coverage substantially identical to the coverage
maintained by the Employers for the Executive immediately prior to his
termination. Such coverage shall cease upon the expiration of the remaining
term of this Agreement.
(e) In the event of the Executive's death during the term of this
Agreement, the Employers shall provide to the Executive's spouse for the life
of such spouse continued medical and dental coverage substantially identical to
the coverage maintained by the Employers for the Executive immediately prior to
his death.
(f) The Executive's compensation, benefits and expenses shall be
paid by the Corporation and the Bank in the same proportion as the time and
services actually expended by the Executive on behalf of each respective
Employer.
4. EXPENSES. The Employers shall reimburse the Executive or
otherwise provide for or pay for all reasonable expenses incurred by the
Executive in furtherance of, or in connection with the business of the
Employers, including, but not by way of limitation, automobile and traveling
expenses, subject to such reasonable documentation and other limitations as may
be established by the Boards of Directors of the Employers. If such expenses
are paid in the first instance by the Executive, the Employers shall reimburse
the Executive therefor.
5. TERMINATION.
(a) The Employers shall have the right, at any time upon prior
Notice of Termination, to terminate the Executive's employment hereunder for
any reason, including without limitation termination for Cause, Disability or
Retirement, and the Executive shall have the right, upon prior Notice of
Termination, to terminate his employment hereunder for any reason.
(b) In the event that the (i) the Executive's employment is
terminated by the Employers for Cause, Disability or Retirement or in the event
of the Executive's death, or (ii) the Executive terminates his employment
hereunder other than for Good Reason, the Executive shall have no right pursuant
to this Agreement to compensation or other benefits for any period after the
applicable Date of Termination.
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(c) In the event that the Executive's employment is terminated as
a result of Disability, Retirement or the Executive's death during the term of
this Agreement, the Executive shall have no right pursuant to this Agreement to
compensation or other benefits for any period after the applicable Date of
Termination, except as provided for in Sections 3(d) and 3(e) hereof.
(d) In the event that (i) the Executive's employment is
terminated by the Employers for other than Cause, Disability, Retirement or the
Executive's death or (ii) such employment is terminated by the Executive (a)
due to a material breach of this Agreement by the Employers, which breach has
not been cured within fifteen (15) days after a written notice of
non-compliance has been given by the Executive to the Employers, or (b) for
Good Reason, then the Employers shall, subject to the provisions of Section 6
hereof, if applicable,
(A) pay to the Executive, in either twenty-four (24) equal
monthly installments beginning with the first business day of the month
following the Date of Termination or in a lump sum within five business days of
the Date of Termination (at the Executive's election), a cash severance amount
equal to two (2) times the Executive's Average Annual Compensation, and
(B) maintain and provide for a period ending at the earlier of
(i) the expiration of the remaining term of employment pursuant hereto prior to
the Notice of Termination or (ii) the date of the Executive's full-time
employment by another employer (provided that the Executive is entitled under
the terms of such employment to benefits substantially similar to those
described in this subparagraph (B), at no cost to the Executive, the
Executive's continued participation in all group insurance, life insurance,
health and accident, disability and other employee benefit plans, programs and
arrangements in which the Executive was entitled to participate immediately
prior to the Date of Termination (other than stock option and restricted stock
plans of the Employers), provided that in the event that the Executive's
participation in any plan, program or arrangement as provided in this
subparagraph (B) is barred or during such period any such plan, program or
arrangement is discontinued or the benefits thereunder are materially reduced,
the Employers shall arrange to provide the Executive with benefits
substantially similar to those which the Executive was entitled to receive
under such plans, programs and arrangements immediately prior to the Date of
Termination.
6. LIMITATION OF BENEFITS UNDER CERTAIN CIRCUMSTANCES. If the
payments and benefits pursuant to Section 5 hereof, either alone or together
with other payments and benefits which the Executive has the right to receive
from the Employers, would constitute a "parachute payment" under Section 280G of
the Code, the payments and benefits payable by the Employers pursuant to Section
5 hereof shall be reduced, in the manner determined by the Executive, by the
amount, if any, which is the minimum necessary to result in no portion of the
payments and benefits under Section 5 being non-deductible to either of the
Employers pursuant to Section 280G of the Code and subject to the excise tax
imposed under Section 4999 of the Code. The determination of any reduction in
the payments and benefits to be made pursuant to Section 5 shall be based upon
the opinion of independent tax counsel selected by the Employers and paid by the
Employers. Such counsel shall be reasonably acceptable to the Employers and the
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Executive; shall promptly prepare the foregoing opinion, but in no event later
than thirty (30) days from the Date of Termination; and may use such actuaries
as such counsel deems necessary or advisable for the purpose. Nothing contained
herein shall result in a reduction of any payments or benefits to which the
Executive may be entitled upon termination of employment under any circumstances
other than as specified in this Section 6, or a reduction in the payments and
benefits specified in Section 5 below zero.
7. MITIGATION; EXCLUSIVITY OF BENEFITS.
(a) The Executive shall not be required to mitigate the amount of
any benefits hereunder by seeking other employment or otherwise, nor shall the
amount of any such benefits be reduced by any compensation earned by the
Executive as a result of employment by another employer after the Date of
Termination or otherwise.
(b) The specific arrangements referred to herein are not intended
to exclude any other benefits which may be available to the Executive upon a
termination of employment with the Employers pursuant to employee benefit plans
of the Employers or otherwise.
8. WITHHOLDING. All payments required to be made by the
Employers hereunder to the Executive shall be subject to the withholding of
such amounts, if any, relating to tax and other payroll deductions as the
Employers may reasonably determine should be withheld pursuant to any
applicable law or regulation.
9. ASSIGNABILITY. The Employers may assign this Agreement and
their rights and obligations hereunder in whole, but not in part, to any
corporation, bank or other entity with or into which the Employers may
hereafter merge or consolidate or to which the Employers may transfer all or
substantially all of their assets, if in any such case said corporation, bank
or other entity shall by operation of law or expressly in writing assume all
obligations of the Employers hereunder as fully as if it had been originally
made a party hereto, but may not otherwise assign this Agreement or its rights
and obligations hereunder. The Executive may not assign or transfer this
Agreement or any rights or obligations hereunder.
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10. NOTICE. For the purposes of this Agreement, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by certified
or registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
To the Employers: Board of Directors
Staten Island Bancorp, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
To the Executive: [EXECUTIVE'S NAME AND ADDRESS]
11. AMENDMENT; WAIVER. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and such officer or officers
as may be specifically designated by the Boards of Directors of the Employers
to sign on their behalf. No waiver by any party hereto at any time of any
breach by any other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at
any prior or subsequent time.
12. GOVERNING LAW. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the United
States where applicable and otherwise by the substantive laws of the State of
New York.
13. NATURE OF OBLIGATIONS. Nothing contained herein shall create
or require the Employers to create a trust of any kind to fund any benefits
which may be payable hereunder, and to the extent that the Executive acquires a
right to receive benefits from the Employers hereunder, such right shall be no
greater than the right of any unsecured general creditor of the Employers.
14. HEADINGS. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. VALIDITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement, which shall remain in full force and
effect.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. REGULATORY ACTIONS. The following provisions shall be
applicable to the parties to the extent that they are required to be included
in employment agreements between a savings
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association and its employees pursuant to Section 563.39(b) of the Regulations
Applicable to All Savings Associations, 12 C.F.R. Section 563.39(b), or any
successor thereto, and shall be controlling in the event of a conflict with any
other provision of this Agreement, including without limitation Section 5
hereof.
(a) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Employers' affairs pursuant
to notice served under Section 8(e)(3) or Section 8(g)(1) of the Federal
Deposit Insurance Act ("FDIA") (12 U.S.C. Sections 1818(e)(3) and 1818(g)(1)),
the Employers' obligations under this Agreement shall be suspended as of the
date of service, unless stayed by appropriate proceedings. If the charges in
the notice are dismissed, the Employers may, in their discretion: (i) pay the
Executive all or part of the compensation withheld while its obligations under
this Agreement were suspended, and (ii) reinstate (in whole or in part) any of
its obligations which were suspended.
(b) If the Executive is removed from office and/or permanently
prohibited from participating in the conduct of the Employers' affairs by an
order issued under Section 8(e)(4) or Section 8(g)(1) of the FDIA (12 U.S.C.
Sections 1818(e)(4) and (g)(1)), all obligations of the Employers under this
Agreement shall terminate as of the effective date of the order, but vested
rights of the Executive and the Employers as of the date of termination shall
not be affected.
(c) If the Bank is in default, as defined in Section 3(x)(1) of
the FDIA (12 U.S.C. Section 1813(x)(1)), all obligations under this Agreement
shall terminate as of the date of default, but vested rights of the Executive
and the Employers as of the date of termination shall not be affected.
(d) All obligations under this Agreement shall be terminated
pursuant to 12 C.F.R. Section 563.39(b)(5) (except to the extent that it is
determined that continuation of the Agreement for the continued operation of
the Employers is necessary): (i) by the Director of the Office of Thrift
Supervision ("OTS"), or his/her designee, at the time the Federal Deposit
Insurance Corporation ("FDIC") enters into an agreement to provide assistance
to or on behalf of the Bank under the authority contained in Section 13(c) of
the FDIA (12 U.S.C. Section 1823(c)); or (ii) by the Director of the OTS, or
his/her designee, at the time the Director or his/her designee approves a
supervisory merger to resolve problems related to operation of the Bank or when
the Bank is determined by the Director of the OTS to be in an unsafe or unsound
condition, but vested rights of the Executive and the Employers as of the date
of termination shall not be affected.
18. REGULATORY PROHIBITION. Notwithstanding any other provision
of this Agreement to the contrary, any payments made to the Executive pursuant
to this Agreement, or otherwise, are subject to and conditioned upon their
compliance with Section 18(k) of the FDIA (12 U.S.C. Section 1828(k)) and the
regulations promulgated thereunder, including 12 C.F.R. Part 359.
19. PAYMENT OF COSTS AND LEGAL FEES AND REINSTATEMENT OF
BENEFITS. In the event any dispute or controversy arising under or in
connection with the Executive's termination is resolved in favor of the
Executive, whether by judgment, arbitration or settlement, the Executive
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shall be entitled to the payment of (a) all legal fees incurred by the Executive
in resolving such dispute or controversy, and (2) any back-pay, including Base
Salary, bonuses and any other cash compensation, fringe benefits and any
compensation and benefits due to the Executive under this Agreement.
20. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement between the Employers and the Executive with respect to the matters
agreed to herein. All prior agreements between the Employers and the Executive
with respect to the matters agreed to herein are hereby superseded and shall
have no force or effect.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
Attest: STATEN ISLAND BANCORP, INC.
By:
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Attest: STATEN ISLAND SAVINGS BANK
By:
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EXECUTIVE
By:
---------------------------------
[EXECUTIVE]
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