EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT (this "Agreement") dated as of January 1, 2007, by and between,
Greater Buffalo Savings Bank, a New York chartered savings bank having its
principal place of business at 0000 Xxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000
("GBSB"), and Xxxxxxxx Xxxxxxx, an individual residing at 0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx Xxxxxx, XX 00000 (the "Executive"). GBSB and the Executive
are
collectively the Parties and individually a Party.
WITNESSETH:
WHEREAS,
Executive currently serves as Executive Vice President - Mortgage Banking
Division of GBSB;
WHEREAS,
GBSB (the "Employer") desire to continue to employ the Executive, and the
Executive desires to continue to be employed by the Employer, all in accordance
with the terms and subject to the conditions set forth herein; and
WHEREAS,
the Parties are entering into this Agreement to set forth and confirm their
respective rights and obligations with respect to the Executive's employment
by
the Employer.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the Parties hereto, intending to be legally bound hereby, mutually
agree as follows:
1. Employment
and Term.
(a) Effective
as of [January 1, 2007] (the "Effective Date"), GBSB shall continue to employ
the Executive, and the Executive shall continue to be employed by GBSB, as
the
Executive Vice President Mortgage Banking Division of GBSB (with such position
being referred to herein as the "Position"), in accordance with the terms and
subject to the conditions set forth herein for a term (the "Term") that shall
commence on the Effective Date and, subject to the provisions of this Section
1,
shall continue for a period of three years.
(b) Unless
written notice in accordance with Section 1(c) or 1(d), as the case may be,
terminating the Executive's employment under this Agreement is given by (i)
the
Employer or (ii) the Executive, the Employer shall have the option to renew
this
Agreement for additional one year terms (“Renewal Term”) on an annual basis
thereafter by providing the Executive with one hundred eighty (180) days written
notice of the intent to renew. Unless otherwise provided in this Agreement
or as
agreed by the Employer and the Executive, all of the terms and conditions of
this Agreement shall continue in full force and effect throughout the Term
and
any Renewal Term. In the event Employer does not exercise its right to a Renewal
Term, the Executive shall use his best efforts during the remaining period
of
the Term to effectuate the orderly transition of his duties in whatever manner
the Employer directs.
(c) Notwithstanding
Section 1(b), the Employer, by action of its Board of Directors (the "Board")
or
its President and effective as of the date specified in a written notice to
the
Executive in accordance with the terms of this Agreement, shall have the right
to terminate the Executive's employment under this Agreement at any time during
the Term or any Renewal Term (i) for Cause (as hereafter defined), (ii) other
than for Cause, or (iii) on account of the Executive's death or Permanent
Disability (as defined in this Agreement).
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(d) Notwithstanding
Section 1(b), the Executive, effective as of the date specified in a written
notice provided no less than 30 days in advance, shall have the right to
terminate his employment under this Agreement at any time during the Term (i)
for Good Reason (ii) without Good Reason or (iii) in the event a Change in
Control occurs.
(e) As
used
in this Agreement,
(i) "Cause"
shall mean (A) the Executive's willful and continued failure substantially
to
perform his duties with the Employer as set forth in this Agreement, or the
commission by the Executive of any act constituting a violation under any
federal, state or local law or regulation applicable to the activities of GBSB,
in each case, after notice thereof from the Employer to the Executive and a
reasonable opportunity for the Executive to cease such failure, breach or
violation in all material respects, (B) an act of dishonesty, fraud or material
misrepresentation, breach of fiduciary duty, or other acts that cause material
damage to the property or business of GBSB by the Executive, (C) the Executive's
repeated absences from work such that he is unable to perform his duties under
this Agreement other than for physical or mental impairment or illness, (D)
the
Executive's conviction of, or plea of nolo contendere to, any crime referenced
in Section 19 of the Federal Deposit Insurance Act, (E) the Executive's
conviction of, or plea of nolo contendere to, any felony or any other crime
that, in the reasonable judgment of the Board, adversely affects GBSB's
reputation or the Executive's ability to carry out his obligations under this
Agreement, (F) the Executive's non-compliance with the provisions of Section
2(b) of this Agreement after notice thereof from the Employer to the Executive
and a reasonable opportunity for the Executive to cure such non-compliance
or
(G) the Executive’s failure to achieve or attain the goals and objectives as
established from time to time by the Board or the President and agreed to by
the
Executive.
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(ii) "Permanent
Disability" shall mean: a physical or mental disability such that the Executive
is, with or without reasonable accommodation, substantially unable to perform
the duties of his Position and the nonperformance of such duties has continued
for a period of six months extending beyond the Executive’s total sick leave
entitlement, provided, however, that in order to terminate the Executive's
employment under this Agreement on account of Permanent Disability, the Employer
must provide the Executive with written notice, not less than 60 days prior
to
the date of termination specified in such notice, of the Board's good faith
determination, based on a medical opinion of a physician selected by the
Employer and reasonably acceptable to the Executive, to terminate the
Executive's employment under this Agreement for reason of Permanent Disability.
Until the specified effective date of termination by reason of Permanent
Disability, the Executive shall continue to receive compensation at the rates
set forth in Section 3. No termination of the Executive's employment under
this
Agreement because of Permanent Disability shall impair any rights of the
Executive under any disability insurance policy maintained by the Employer.
(iii) "Good
Reason" shall mean: (A) the Executive's Position or the scope of the Executive's
authority, duties or responsibilities as described in this Agreement are
materially diminished without the Executive's written consent, excluding for
this purpose any action not taken by the Employer in bad faith and that is
remedied by the Employer promptly following written notice thereof from the
Executive to the Employer; (B) a material breach by the Employer of its
obligations to the Executive under this Agreement, which breach is not cured
in
all material respects to the reasonable satisfaction of the Executive within
30
days (except in the case of a payment default for which the cure period shall
be
10 days), in each case following written notice thereof from the Executive
to
the Employer, (C) any termination of the Executive's employment under this
Agreement without Cause or (D) failure of the Employer to renew the Term of
this
Agreement under Section 1(b); and
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(iv) "Change
of Control" shall mean: (A) the acquisition of shares of Great Lakes Bancorp,
Inc. (“GLB”) by any "Person" or "Group" (as such terms are used in Rule 13d-3
under the Securities Exchange Act of 1934 as now or hereafter amended) in a
transaction or series of transactions that result in such person or group
directly or indirectly first owning beneficially more than 50% of GLB's Common
Stock after the date of this Agreement, or (B) the consummation of a merger
or
other business combination after which the holders of voting capital stock
of
GLB immediately prior to the transaction do not collectively own 50% or more
of
the voting capital stock (immediately following the transaction) of the entity
surviving such merger or other business combination, or (C) a sale of all or
substantially all of the assets or earning power of GLB, taken as a whole (with
the stock or other ownership interests of GLB in any of its Affiliates
constituting assets of GLB for this purpose) to a Person that is not an
Affiliate of GLB, or (D) as the result of or in connection with any cash tender
offer or exchange offer, merger or other business combination, sale of assets
or
contested election of directors or any combination of the foregoing transactions
(a "Transaction"), the persons who constituted a majority of the members of
the
Board of Directors of GLB on the Effective Date and persons whose election
as
members of the Board of Directors of GLB was approved by such members then
still
in office or whose election was previously so approved after the Effective
Date,
but before the event that constitutes a Transaction, no longer constitute such
a
majority of the members of the Board of Directors of GLB then in office. A
Transaction constituting a Change of Control shall be deemed to have occurred
only upon the closing of the Transaction.
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(v) An
“Affiliate” of, or a Person “Affiliated” with, a specified Person, shall mean: a
Person that directly, or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, the Person
specified.
2. Duties
of the Executive.
(a) Subject
to the ultimate control and discretion of the Board of the Employer, the
Executive shall serve in the Position and perform all duties and services
commensurate with the Position. Throughout the Term, the Executive shall perform
all duties reasonably assigned or delegated to him under the by-laws of the
Employer or from time to time by the Board consistent with the Position. Except
for travel normally incidental and reasonably necessary to the business of
the
Employer and the duties of the Executive under this Agreement, the duties of
the
Executive shall be performed from an office location not greater than 20 miles
from the Greater Buffalo, New York area.
(b) The
Executive shall devote substantially all of the Executive's business time and
attention to the performance of the Executive's duties under this Agreement
and,
during the term of his employment under this Agreement, the Executive shall
not
engage in any other business enterprise that requires any significant amount
of
the Executive's personal time or attention, unless granted by the prior
permission of the Board. The foregoing provision shall not prevent the
Executive's purchase, ownership or sale of any interest in, or the Executive's
engaging, but not to exceed an average of five hours per week, in any business
that does not compete with the business of the Employer or the Executive's
involvement in charitable or community activities, provided, that the time
and
attention that the Executive devotes to such business and charitable or
community activities does not interfere with the performance of his duties
under
this Agreement and that the greatest portion of the time devoted by the
Executive to charitable or community activities are devoted to charitable or
community activities within the Employer's market area and further provided
that
such conduct complies in all respects with applicable policies of the Employer.
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(c) The
Executive shall be entitled to four weeks of vacation leave during each calendar
year with full compensation, and to be taken at such time or times, as the
Executive and the Employer shall mutually determine. Earned but unused vacation
shall accrue in accordance with the Employer’s vacation policy as in effect from
time to time.
3. Compensation.
For all
services to be rendered by the Executive under this Agreement:
(a) The
Employer shall pay the Executive a base salary (the "Base Salary") at an annual
rate of $200,000, plus such other compensation as may, from time to time, be
determined by the Employer in its sole discretion. At the end of each fiscal
year of the Employer, the Employer shall review the amount of the Executive's
Base Salary, and shall adjust such Base Salary for the following year to such
amount as the Board may determine in their discretion. Such Base Salary and
other compensation shall be payable in accordance with the Employer’s normal
payroll practices as in effect from time to time.
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(b) The
Executive will be entitled to participate in, subject to eligibility
requirements, the Employer’s health and medical benefit plans, any pension,
profit sharing and retirement plans, and any insurance policies or programs
from
time to time generally offered to all or substantially all executive employees
who are employed by the Employer. These plans, policies and programs are subject
to change at the sole discretion of the Employer.
(c) The
Executive will be entitled to any other fringe benefit from time to time
generally offered to all or substantially all senior executive employees who
are
employed by the Employer.
(d) The
Employer will deduct or withhold from all salary and bonus payments, and from
all other payments made to the Executive pursuant to this Agreement, all amounts
that may be required to be deducted or withheld under any applicable Social
Security contribution, income tax withholding or other similar law now in effect
or that may become effective during the term of this Agreement.
(e) Annual
Bonus.
Effective with Fiscal Year January 1, 2007, the Employer shall pay the Executive
an Annual Bonus (the “Annual Bonus”) equal to five percent (5%) of the Pre-tax
Profits of GBSB’s Mortgage Banking Division (as defined in this Agreement). As
used in this Agreement, “Pre-tax Profits” shall mean: the before tax profit of
GBSB’s Mortgage Banking Division, calculated in accordance with the methodology
and guidelines set out in Attachment A of the Agreement, as determined by GBSB’s
regularly engaged certified public accountants. The Executive shall be entitled
to his Annual Bonus as he earns it throughout any year, whether or not he
remains in the employ of GBSB. An Annual Bonus paid to Executive in a year
in
which the Executive leaves the employ of Employer shall be paid out at year-end
on a prorata basis based on year-end results.
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(f) Stock
Option Awards.
GLB
shall grant the Executive Fifteen Thousand (15,000) incentive stock options
pursuant to the terms and conditions of GLB’s stock option plan. The option will
become vested and exercisable with respect to 3,000 shares on the first
anniversary of the date of grant, and on each anniversary of the date of grant
thereafter, the option will become vested and exercisable with respect to an
additional 3,000 shares. Notwithstanding the foregoing, accelerated vesting
shall take place in the event of a Change in Control as defined in this
Agreement or if the Employer terminates the Executive's employment under this
Agreement for any reason other than for Cause. Further, upon the death of the
Executive, any options that would vest within the following 12 months will
become vested and exercisable. The Executive will be annually considered for
grants of incentive stock options or other awards under equity compensation
plans maintained by GLB. For purposes of this Section 3(f), the Employer’s
failure to renew this Agreement will allow the Executive to terminate his
employment at any time and such termination will be deemed to be a termination
of employment by the Employer without Cause.
4. Expenses.
The
Employer shall promptly reimburse the Executive for (a) all reasonable expenses
paid or incurred by the Executive in connection with the performance of the
Executive's duties and responsibilities under this Agreement, upon presentation
of expense vouchers or other appropriate documentation therefor and (b) all
reasonable professional expenses, such as licenses and dues and professional
educational expenses paid or incurred by the Executive during the Term.
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5. Termination.
(a) Termination
By Employer without Cause or Termination by Executive with Good
Reason.
If (A)
the Employer terminates the Executive's employment under this Agreement for
any
reason other than for (i) Cause, (ii) death or (iii) Permanent Disability,
or
(B) the Executive terminates his employment hereunder for Good Reason, the
Employer, provided the Executive concurrently signs and delivers a general
release and waiver in a form acceptable to the Employer, shall pay to the
Executive, or his estate, promptly after the event giving rise to such payment
occurs an amount equal to the sum of (1) the Executive's Base Salary (as defined
in this Agreement) accrued but unpaid through the date the termination of the
Executive's employment under this Agreement is effective, (2) the Annual Bonus
required to be paid to the Executive pursuant to Section 3(e), prorated for
the
period of employment, and (3) payment of Base Salary for nine (9) months or
the
remainder of the Term or Renewal Term, whichever is longer. Additionally, the
options granted pursuant to Section 3(f) shall become fully vested and
exercisable and the Executive will have a period of two years from the date
of
termination (but not later than the date the options would otherwise expire
had
the Executive continued to be employed) in which to exercise the
options.
(b) Termination
By Employer with Cause or Termination by Executive without Good
Reason.
If (A)
the Employer terminates the Executive's employment hereunder for Cause, or
(B)
the Executive terminates his employment hereunder for any reason other than
Good
Reason, the sole obligation of the Employer shall be to pay to the Executive,
or
his estate, an amount equal to the Executive's Base Salary accrued but unpaid
through the date the termination of the Executive's employment under this
Agreement is effective.
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(c) Termination
By Reason of Death or Permanent Disability.
If the
Executive’s employment is terminated for reason of (i) death or (ii) Permanent
Disability, the Employer, shall pay to the Executive, or his estate, promptly
after the event giving rise to such payment occurs an amount equal to the sum
of
(1) the Executive's Base Salary (as defined in this Agreement) accrued but
unpaid through the date the termination of the Executive's employment under
this
Agreement is effective, (2) the Annual Bonus required to be paid to the
Executive pursuant to Section 3(e), prorated for the period of employment,
and
(3) continued payment of Base Salary for a period of nine (9)
months.
(d) Any
notice of termination of the employment of the Executive under this Agreement
by
the Employer to the Executive or by the Executive to the Employer shall be
given
in accordance with the provisions of Section 17. The date of termination of
employment will be the date specified in the notice or, in the event of death
of
the Executive, the date of death.
6. Indemnification.
Notwithstanding anything in the Employer’s certificates of incorporation or
by-laws to the contrary, the Executive shall at all times during his employment
by the Employer, and thereafter, be indemnified by the Employer to the fullest
extent permitted by applicable law for any matter in any way relating to the
Executive's affiliation with the Employer and its subsidiaries; provided,
however, that if the Executive's employment shall have been terminated by the
Employer for Cause, then, to the extent required by applicable law, the Employer
shall have no obligation whatsoever to indemnify the Executive for any claim
arising out of the matter for which his employment shall have been terminated
for Cause or for any conduct of the Executive not within the scope of the
Executive's duties under this Agreement.
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7. Reimbursement.
The
Employer agree to reimburse the Executive for the reasonable fees and expenses
of the Executive's attorneys and for court and related costs in any proceeding
to enforce the provisions of this Agreement in which the Executive is successful
on the merits.
8. Confidential
Information.
The
Executive acknowledges that, in the course of his employment by the Employer,
the Executive will receive confidential information concerning the business
of
the Employer and that the Employer desire to protect. The Executive agrees
that
he will not at any time during or after the period of his employment by the
Employer reveal to anyone outside the Employer, except as required by law,
or
use for his own benefit, any such information that has been designated as
confidential by the Employer or understood by the Executive to be confidential
without specific written authorization by the Employer. Upon termination of
this
Agreement, and upon the request of the Employer, the Executive shall promptly
deliver to the Employer any and all written materials, records and documents,
including all copies thereof, made by the Executive or coming into his
possession during the Term and retained by the Executive containing or
concerning confidential information of the Employer and all other written
materials furnished to and retained by the Executive by the Employer for his
use
during the Term, including all copies thereof, whether of a confidential nature
or otherwise.
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9. Treatment
of Confidential Information; Confidentiality Agreements.
The
Executive will not, directly or indirectly, disclose, use or make known for
the
Executive’s or another’s benefit any confidential information of the Employer or
use such confidential information in any way except in the best interests of
the
Employer in the performance of the Executive’s duties for the Employer. The
Executive will take all necessary steps to safeguard the Employer’s confidential
information. In addition, to the extent that the Employer have entered into
a
confidentiality agreement with any other person or entity, the Executive agrees
to comply with the terms of such confidentiality agreement and to be subject
to
the restrictions and limitations imposed by such confidentiality agreements
as
if the Executive was a party thereto.
10. Non-solicitation.
During
the term of this Agreement and during the period for which Executive is entitled
to receive compensation after the termination of this Agreement or pursuant
to
any other agreement,
and
for a
period of six-months thereafter, Executive shall not, directly or indirectly,
without the written consent of the Employer: (i) recruit or solicit for
employment any employee of the Employer or encourage any such employee to leave
their employment with the Employer, or (ii) solicit, induce or influence
any customer, supplier, lessor or any other person or entity which has a
business relationship with the Employer to discontinue or reduce the extent
of
such relationship with the Employer.
11. Non-competition. During
the term of this Agreement and during any period for which Executive is entitled
to receive compensation after the termination of this Agreement or pursuant
to
any other agreement (but, in any case, for a period of not less than six (6)
months after the termination of this Agreement), Executive shall not engage,
anywhere within the Western New York counties in which the Employer has
branches, whether directly or indirectly, as principal, owner, officer,
director, agent, employee, consultant or partner, in the management of a bank
holding company, commercial bank, savings bank, credit union or any other
financial services provider that competes with the Employer or their products
or
programs (“Restricted Activities”), provided that the foregoing shall not
restrict Executive from engaging in any Restricted Activities which the Employer
direct Executive to undertake or which the Employer otherwise expressly
authorizes. The foregoing shall not restrict Executive from owning less than
five percent (5%) of the outstanding capital stock of any company which engages
in Restricted Activities, provided that Executive is not otherwise involved
with
such company as an officer, director, agent, employee or consultant. The
foregoing provisions this Section 11 shall not be held invalid because of the
scope of the territory covered, the actions restricted thereby, or the period
of
time such covenant is operative.
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12. Representation
and Warranty of the Executive.
The
Executive represents and warrants that he is not under any obligation,
contractual or otherwise, to any other firm or corporation, that would prevent
his entry into the employ of the Employer or his performance of the terms of
this Agreement or that would cause him to be in violation of any non-competition
agreement. As a condition to this Agreement becoming effective, Executive must
deliver to Employer a written release, in a form acceptable to Employer, from
all prior employers of any claims they may have or potentially assert against
Executive and the Employer that relate to or would purport to limit Executive’s
performance of the terms of this Agreement.
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13. Effect
of Regulatory Actions.
Any
actions by the Employer under this Agreement must comply with the law, including
regulations and other interpretive action, of the Federal Deposit Insurance
Act,
Federal Deposit Insurance Corporation, or other entities that supervise any
of
the activities of the Employer. Specifically:
(a) Temporary
Suspension or Prohibition.
If the
Executive is suspended from office or temporarily prohibited from participating
in the conduct of the affairs of any banking subsidiary of GLB by a notice
served under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act
(“FDIA”), 12 U.S.C. § 1818(e)(3) and (g)(1), the Employer’s obligations under
this Agreement will be suspended as of the date of service, unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, the
Employers, in their discretion, may (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 that were
suspended.
(b) Permanent
Suspension or Prohibition.
If the
Executive is removed from office or permanently prohibited from participating
in
the conduct of the affairs of any banking subsidiary of GLB by an order issued
under Section 8(e)(4) or (g)(1) of the FDIA, 12 U.S.C. § 1818(e)(4) and (g)(1),
all obligations of the Employers under this Agreement will terminate as of
the
effective date of the order, but vested rights of the Parties will not be
affected.
(c) Default
of the Bank.
If any
banking subsidiary of GLB is in default (as defined in Section 3(x)(1) of the
FDIA, 12 U.S.C. § 1813(x)(1)), all obligations under this Agreement will
terminate as of the date of default, but vested rights of the Parties will
not
be affected.
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14. Termination
by Regulators.
All
obligations under this Agreement will be terminated, except to the extent
determined by the federal bank regulatory agency of any banking subsidiary
of
GLB that continuation of this Agreement is necessary for the continued operation
of the banking subsidiary, if (1) the governing federal bank regulatory agency
enters into an agreement to provide assistance to or on behalf of a banking
subsidiary of GLB under the authority contained in Section 13(c) of the
FDIA, 12 U.S.C. § 1823(c); or (2) such banking subsidiary of GLB is determined
by the federal bank regulatory authority to be in an unsafe or unsound
condition. However, vested rights of the Parties will not be
affected.
15. Entire
Agreement; Amendment.
This
Agreement contains the entire agreement between the Employer and the Executive
and supersedes any other written or oral agreements with respect to the subject
matter hereof, and may not be amended, waived, changed, modified or discharged
except by an instrument in writing executed by the Employer and the Executive.
This Agreement supersedes any previous agreements between the Employer and
the
Executive with respect to the subject matter hereof.
16. Assignability.
The
services of the Executive under this Agreement are personal in nature, and
neither this Agreement nor the rights or obligations of the Employer under
this
Agreement may be assigned by the Employer, whether by operation of law or
otherwise, without the Executive's prior written consent. This Agreement shall
be binding upon, and inure to the benefit of, the Employer and their permitted
successors and assigns under this Agreement. This Agreement shall not be
assignable by the Executive, but shall inure to the benefit of the Executive's
heirs, executors, administrators and legal representatives.
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17. Notice.
Any
notice that may be given under this Agreement shall be in writing and be deemed
given when hand delivered and acknowledged or, if mailed, one day after mailing
by registered or certified mail, return receipt requested, or if delivered
by an
overnight delivery service, one day after the notice is delivered to such
service, to the Employer or the Executive at their respective addresses stated
above, or at such other address as the Executive or the Employer may by similar
notice designate.
18. Specific
Performance.
The
Employer and the Executive agree that irreparable damage would occur in the
event that any of the provisions of Sections 8 through 11 were not performed
in
accordance with their specific terms or were otherwise breached. The Executive
accordingly agrees that the Employer shall be entitled to an injunction or
injunctions to prevent breaches of Sections 8 through 11 and to enforce
specifically the terms and provisions of Sections 8 through 11 in addition
to
any other remedy to which the Employer are entitled at law or in equity.
19. No
Third Party Beneficiaries.
Nothing
in this Agreement, express or implied, is intended to confer upon any person
or
entity other than the Parties (and the Executive's heirs, executors,
administrators and legal representatives and the permitted transferees of the
Shares) any rights or remedies of any nature under or by reason of this
Agreement.
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20. Successor
Liability.
The
Employer shall require any successor, whether direct or indirect, by purchase,
merger, consolidation or otherwise, to all or substantially all of the business
or assets of the Employer to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Employer would
be
required to perform it if no such succession had taken place.
21. Mitigation.
The
Executive shall not be required to mitigate the amount of any payment provided
for in this Agreement by seeking other employment or otherwise, nor shall the
amount of any payment or benefit provided for in this Agreement be reduced
by
any compensation earned by the Executive as the result of employment by another
employer or by retirement benefits payable after the termination of this
Agreement, except that the Employer shall not be required to provide the
Executive and his eligible dependents with medical insurance coverage as long
as
the Executive and his eligible dependents are receiving comparable medical
insurance coverage from another employer.
22. Waiver
of Breach.
The
failure at any time to enforce or exercise any right under any of the provisions
of this Agreement or to require at any time performance by the other Parties
of
any of the provisions hereof shall in no way be construed to be a waiver of
such
provisions or to affect either the validity of this Agreement or any part
hereof, or the right of any party hereafter to enforce or exercise its rights
under each and every provision in accordance with the terms of this Agreement.
23. No
Attachment.
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 effect any such action shall be null, void and of no effect;
provided, however, that nothing in this Section 23 shall preclude the assumption
of such rights by executors, administrators or other legal representatives
of
the Executive or his estate and their assigning any rights under this Agreement
to the person or persons entitled hereto.
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24. Severability.
The
invalidity or unenforceability of any term, phrase, clause, paragraph,
restriction, covenant, agreement or other provision of this Agreement shall
in
no way affect the validity or enforceability of any other provision, or any
part
thereof, but this Agreement shall be construed as if such invalid or
unenforceable term, phrase, clause, paragraph, restriction, covenant, agreement
or other provision had never been contained in this Agreement unless the
deletion of such term, phrase, clause, paragraph, restriction, covenant,
agreement or other provision would result in such a material change as to cause
the covenants and agreements contained in this Agreement to be unreasonable
or
would materially and adversely frustrate the objectives of the Employer and
the
Executive as expressed in this Agreement.
25. Survival
of Benefits.
Any
provision of this Agreement that provides a benefit to the Executive and that
by
the express terms hereof does not terminate upon the expiration of the Term
shall survive the expiration of the Term and shall remain binding upon the
Employer until such time as such benefits are paid in full to the Executive
or
his estate.
26. Construction.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York, without giving effect to principles of conflict
of laws. All headings in this Agreement have been inserted solely for
convenience of reference only, are not to be considered a part of this Agreement
and shall not affect the interpretation of any of the provisions of this
Agreement.
[Remainder
of Page Intentionally Left Blank. Signature Page Follows.]
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19
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IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date
first written above.
| GREAT LAKES BANCORP, INC. | ||
| |
|
|
| By: | ||
|
Xxxxxx
X. Xxxx, Xx., President
and
Chief Executive Officer
|
||
| GREATER BUFFALO SAVINGS BANK | ||
| |
|
|
| By: | ||
|
Xxxxxx
X. Xxxx, Xx., President
and
Chief Executive Officer
|
||
|
Xxxxxxxx Xxxxxxx |
||
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ATTACHMENT
A
|
Gross Revenue for GBSB Mortgage Banking
Division
in
accordance with GAAP and adjusted as noted1
|
XXXXX
|
|
|
Less Direct Operating Expenses associated with
GBSB
Mortgage
Division Operations2
|
(XXXXX)
|
|
|
Less 8% of Gross Revenue or indirect/overhead
expenses
allocated
to Mortgage Banking Division, whichever
is
less
|
(XXXXX)
|
|
| Pretax Profits for purposes of bonus calculations |
XXXXX
|
|
| Bonus Rate |
5%
|
|
| Bonus Amount |
XXXXX
|
1 Amount
to
exclude any revenues arising from merged or otherwise acquired mortgage
banking
operations. Also excludes any extraordinary revenue as determined by Board
of
Directors.
2 Amount
to
exclude any expenses arising from or as a result of a merger or acquisition
of a
mortgage banking operation. Also excluded any extraordinary expenses as
determined by the Board of Directors.
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21
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