Amended and Restated Employment Agreement between Hudson City Bancorp, Inc. and Denis J. Salamone Made and Entered into as of December 31, 2008
Exhibit 10.13
Amended and Restated
between
Xxxxxx City Bancorp, Inc.
and
Xxxxx X. Xxxxxxxx
Made and Entered into
as of December 31, 2008
as of December 31, 2008
Xxxxxx City Bancorp, Inc.
Amended and Restated Employment Agreement
This Amended And Restated Employment Agreement (the “Agreement”) is made and entered
into as of December 31, 2008 between Xxxxxx City Bancorp, Inc., a business corporation
organized and operating under the laws of the State of Delaware and having an office at West 00
Xxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000-0000 (the “Company”) and Xxxxx X. Xxxxxxxx, an
individual residing at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the “Executive”).
Introductory Statement
The Executive currently serves the Company and Xxxxxx City Savings Bank, a savings
bank organized and operating under the federal laws of the United States with an office at West 00
Xxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000-0000, and a wholly owned subsidiary of the Company (the
“Bank”), in an executive capacity pursuant to an Employment Agreement between the Executive, the
Company and the Bank made and entered into as of October 29, 2001 (the “Initial Effective Date”)
and amended and restated on June 7, 2005 (the “Prior Agreement”). The Board of Directors of the
Company (“Board”) has determined that it is in the best interests of the Company to amend and
restate the Prior Agreement pursuant to Section 29 thereof for the purpose, among others, of
compliance with the applicable requirements of section 409A of the Internal Revenue Code of 1986
(the “Code”). The Executive has agreed to this amendment and restatement.
The terms and conditions which the Company and the Executive have agreed to are as follows.
Agreement
Section 1. Employment.
The Company hereby continues to employ the Executive, and the Executive hereby accepts such
continued employment, during the period and upon the terms and conditions set forth in this
Agreement.
Section 2. Employment Period; Remaining Unexpired Employment Period.
(a) The Company shall employ the Executive during an initial period of three (3) years
beginning on the Initial Effective Date (the “Employment Commencement Date”) and ending on the day
before the third (3rd) anniversary of the Employment Commencement Date, and during the period of
any additional extensions described in section 2(b) (the “Employment Period”).
(b) On the day after the Employment Commencement Date and on each day thereafter, the
Employment Period shall be extended by one day, such that on any date the Employment Period will
expire on the day before the third (3rd) anniversary of such date. These extensions shall continue
in perpetuity until discontinued by: (i) notice to the Executive given by the Company that it has
elected to discontinue the extensions; (ii) notice by the Executive to the
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Company that he has elected to discontinue the extensions; or (iii) termination of the
Executive’s employment with the Company, whether by resignation, discharge or otherwise. On the
date on which such a notice is deemed given, or on the effective date of a termination of the
Executive’s employment with the Company, the Employment Period shall be converted to a fixed period
of three (3) years ending on the day before the third (3rd) anniversary of such date.
(c) Except as otherwise expressly provided in this Agreement, any reference in this Agreement
to the term “Remaining Unexpired Employment Period” as of any date shall mean the period beginning
on such date and ending on the day before the third (3rd) anniversary of the earliest of the date
in question, any earlier date on which the Executive or the Company is deemed to have given a
notice to discontinue extensions of the Employment Period, and any earlier date on which the
Executive’s employment with the Company was terminated.
(d) Nothing in this Agreement shall be deemed to prohibit the Company from terminating the
Executive’s employment before the end of the Employment Period with or without notice for any
reason. This Agreement shall determine the relative rights and obligations of the Company and the
Executive in the event of any such termination. In addition, nothing in this Agreement shall
require the termination of the Executive’s employment at the expiration of the Employment Period.
If the Executive’s employment continues beyond the expiration of the Employment Period, any such
continuation shall be on an “at-will” basis unless the Company and the Executive agree otherwise.
Section 3. Duties.
(a) The Executive shall serve as Senior Executive Vice President and Chief Operating Officer
of the Company. The Executive shall have such power, authority and responsibility and perform such
duties as are prescribed by or under the By-Laws of the Company, and as are customarily associated
with such positions. The Executive shall devote his full business time and attention (other than
during weekends, holidays, approved vacation periods, and periods of illness or approved leaves of
absence, and other than his performance of services pursuant to the terms of the employment
agreement between the Bank and the Executive, dated as of the Initial Effective Date (“Bank
Agreement”)) to the business and affairs of the Company and shall use his best efforts to advance
its best interests.
(b) If duly elected, the Executive shall serve as a member of the Board and as Chairman of the
Board (or in another position as a member of the Board), without additional remuneration therefor;
provided, however, that failure to elect the Executive to the position of Chairman of the Board (or
other position as a member of the Board) shall not by itself constitute a breach of the Agreement
or entitle the Executive to severance benefits hereunder.
Section 4. Cash Compensation.
In consideration for the services to be rendered by the Executive hereunder, the Company shall
pay to him a salary at an initial annual rate of nine hundred seven
thousand five hundred dollars ($907,500),
payable in approximately equal installments in accordance with the Company’s customary payroll
practices for senior officers. The Board shall review the Executive’s annual rate of salary at such
times during the Employment Period as it deems appropriate, but not less frequently
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than once every twelve (12) months, and may, in its discretion, approve a salary increase. In
addition to salary, the Executive may receive other cash compensation from the Company for services
hereunder at such times, in such amounts and on such terms and conditions as the Board may
determine. If the Executive is discharged or suspended, or is subject to any regulatory prohibition
or restriction with respect to participation in the affairs of the Bank, he shall continue to
perform services for the Company in accordance with the terms of this Agreement, but shall not
directly or indirectly provide services to or participate in the affairs of the Bank in a manner
inconsistent with the terms of such discharge or suspension or any applicable regulatory order.
Section 5. Employee Benefit Plans and Programs.
During the Employment Period, the Executive shall be treated as an employee of the Company and
shall be entitled to participate in and receive benefits under any and all qualified or
non-qualified retirement, pension, savings, profit-sharing or stock bonus plans, any and all group
life, health (including hospitalization, medical and major medical), dental, accident and long-term
disability insurance plans, and any other employee benefit and compensation plans (including, but
not limited to, any incentive compensation plans or programs, stock option and appreciation rights
plans and restricted stock plans) as may from time to time be maintained by, or cover employees of,
the Company, in accordance with the terms and conditions of such employee benefit plans and
programs and compensation plans and programs and consistent with the Company’s customary practices
in each case as applied to senior executive officers of the Company.
Section 6. Indemnification and Insurance.
(a) During the Employment Period and for a period of six years thereafter, the Company shall
cause the Executive to be covered by and named as an insured under any policy or contract of
insurance obtained by it to insure its directors and officers against personal liability for acts
or omissions in connection with service as an officer or director of the Company or service in
other capacities at the Company’s request. The coverage provided to the Executive pursuant to this
section 6 shall be of the same scope and on the same terms and conditions as the coverage (if any)
provided to other officers or directors of the Company.
(b) To the maximum extent permitted under applicable law, during the Employment Period and for
a period of six years thereafter, the Company shall indemnify the Executive against and hold him
harmless from any costs, liabilities, losses and exposures for acts or omissions in connection with
service as an officer or director of the Company or service in other capacities at the Company’s
request to the fullest extent and on the most favorable terms and conditions that similar
indemnification is offered to any director or officer of the Company or any subsidiary or affiliate
thereof.
Section 7. Outside Activities.
The Executive may serve as a member of the boards of directors of such business, community and
charitable organizations as he may disclose to and as may be approved by the Board (which approval
shall not be unreasonably withheld); provided, however, that such service shall not materially
interfere with the performance of his duties under this Agreement. The Executive may also engage in
personal business and investment activities which do not materially interfere with the
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performance of his duties hereunder; provided, however, that such activities are not
prohibited under any code of conduct or investment or securities trading policy established by the
Company and generally applicable to all similarly situated executives.
Section 8. Working Facilities and Expenses.
The Executive’s principal place of employment shall be at the Bank’s executive offices at the
address first above written, or at such other location as the Company and the Executive may
mutually agree upon. The Company shall provide the Executive at his principal place of employment
with a private office, secretarial services and other support services and facilities suitable to
his positions with the Company and necessary or appropriate in connection with the performance of
his assigned duties under this Agreement. The Company shall provide to the Executive for his
exclusive use an automobile owned or leased by the Company and appropriate to his position, to be
used in the performance of his duties hereunder, including commuting to and from his personal
residence. The Company shall (i) reimburse the Executive for the cost of maintenance and servicing
such automobile and, for instance, gasoline and oil for such automobile; (ii) reimburse the
Executive for his ordinary and necessary business expenses, incurred in the performance of his
duties under this Agreement (including but not limited to travel and entertainment expenses) that
are excludible from the Executive’s gross income for federal income tax purposes; (iii) reimburse
the Executive for fees for memberships in such clubs and organizations and such other expenses as
the Executive and the Company shall mutually agree are necessary and appropriate for business
purposes, in each case as soon as practicable following presentation to the Company of an itemized
account of such expenses in such form as the Company may reasonably require, and in any event not
later than the last day of the calendar year following the calendar year in which the expense was
incurred.
Section 9. Termination of Employment Due to Death.
The Executive’s employment with the Company shall terminate, automatically and without any
further action on the part of any party to this Agreement, on the date of the Executive’s death. In
such event:
(a) The Company shall pay to the Executive’s estate his earned but unpaid compensation
(including, without limitation, salary and all other items which constitute wages under
applicable law) as of the date of his termination of employment. This payment shall be made
at the time and in the manner prescribed by law applicable to the payment of wages but in no
event later than 30 days after the date of the Executive’s termination of employment.
(b) The Company shall provide the benefits, if any, due to the Executive’s estate,
surviving dependents or designated beneficiaries under the employee benefit plans and
programs and compensation plans and programs maintained for the benefit of the officers and
employees of the Company, including the annual bonus plan (if any) to which the Executive is
entitled under any cash-based annual bonus or performance compensation plan in effect for
the year in which his or her termination occurs, to be paid at the same time and on the
terms and conditions (including but not limited to achievement of performance goals)
applicable under the relevant plan. The time and manner of payment or other delivery of
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these benefits
and the recipients of such benefits shall be determined according to the terms and
conditions of the applicable plans and programs.
The payments and benefits described in sections 9(a) and (b) shall be referred to in this Agreement
as the “Standard Termination Entitlements.”
Section 10. Termination Due to Disability.
The Company may terminate the Executive’s employment upon a determination, by vote of a
majority of the members of the Board, acting in reliance on the written advice of a medical
professional acceptable to them, that the Executive is suffering from a physical or mental
impairment which, at the date of the determination, has prevented the Executive from performing his
assigned duties on a substantially full-time basis for a period of at least one hundred and eighty
(180) days during the period of one (1) year ending with the date of the determination or is likely
to result in death or prevent the Executive from performing his assigned duties on a substantially
full-time basis for a period of at least one hundred and eighty (180) days during the period of one
(1) year beginning with the date of the determination. In such event:
(a) The Company shall pay and deliver to the Executive (or in the event of his death
before payment, to his estate and surviving dependents and beneficiaries, as applicable) the
Standard Termination Entitlements.
(b) In addition to the Standard Termination Entitlements, the Company shall continue to
pay the Executive his base salary, at the annual rate in effect for him immediately prior to
the termination of his employment, during a period ending on the earliest of: (i) the
expiration of one hundred and eighty (180) days after the date of termination of his
employment; (ii) the date on which long-term disability insurance benefits are first payable
to him under any long-term disability insurance plan covering employees of the Bank or the
Company (the “LTD Eligibility Date”); (iii) the date of his death; and (iv) the expiration
of the Remaining Unexpired Employment Period (the “Initial Continuation Period”). If the end
of the Initial Continuation Period is neither the LTD Eligibility Date nor the date of his
death, the Company shall continue to pay the Executive his base salary, at an annual rate
equal to sixty percent (60%) of the annual rate in effect for him immediately prior to the
termination of his employment, during an additional period ending on the earliest of the LTD
Eligibility Date, the date of his death and the expiration of the Remaining Unexpired
Employment Period.
A termination of employment due to disability under this section 10 shall be effected by
notice of termination given to the Executive by the Company and shall take effect on the later of
the effective date of termination specified in such notice or the date on which the notice of
termination is deemed given to the Executive.
Section 11. Discharge with Cause.
(a) The Company may terminate the Executive’s employment during the Employment Period, and
such termination shall be deemed to have occurred with “Cause” only if:
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(i) the Board, by a majority vote of its membership, determines that the Executive (A)
has willfully and intentionally failed to perform his assigned duties under this Agreement
in any material respect (including, for these purposes, the Executive’s inability to perform
such duties as a result of drug or alcohol dependency); (B) has willfully and intentionally
engaged in dishonest or illegal conduct in connection with his performance of services for
the Company or has been convicted of a felony; (C) has willfully violated, in any material
respect, any law, rule, regulation, written agreement or final cease-and-desist order with
respect to his performance of services for the Company; or (D) has willfully and
intentionally breached the material terms of this Agreement in any material respect; and
(ii) at least forty-five (45) days prior to the votes contemplated by section 11(a)(i),
the Company has provided the Executive with notice of intent to discharge the Executive for
Cause, detailing with particularity the facts and circumstances which are alleged to
constitute Cause (the “Notice of Intent to Discharge”); and
(iii) after the giving of the Notice of Intent to Discharge and before the taking of
the votes contemplated by section 11(a)(i), the Executive (together with his legal counsel,
if he so desires) is afforded a reasonable opportunity to make both written and oral
presentations before the Board for the purpose of refuting the alleged grounds for Cause for
his discharge; and
(iv) after the votes contemplated by section 11(a)(i), the Company has furnished to the
Executive a notice of termination which shall specify the effective date of his termination
of employment (which shall in no event be earlier than the date on which such notice is
deemed given) and include a copy of a resolution adopted by the Board, certified by the
corporate secretary and signed by each member of the Board voting in favor of adoption of
the resolution, authorizing the termination of the Executive’s employment with Cause and
stating with particularity the facts and circumstances found to constitute Cause for his
discharge (the “Final Discharge Notice”).
For purposes of this section 11, no act or failure to act on the part of the Executive shall be
considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive’s action or omission was in the best interests of the
Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the written advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the
best interests of the Company.
(b) If the Executive is discharged during the Employment Period with Cause, the Company shall
pay and provide to him (or, in the event of his death, to his estate, his surviving beneficiaries
and his dependents) the Standard Termination Entitlements only. Following the giving of a Notice of
Intent to Discharge, the Company may temporarily suspend the Executive’s duties and authority and,
in such event, may also suspend the payment of salary and other cash compensation, but not the
Executive’s participation in retirement, insurance and other employee benefit plans. If the
Executive is not discharged, or is discharged without Cause, within forty-five (45) days after the
giving of a Notice of Intent to Discharge, all payments withheld during the period of suspension
shall
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be promptly restored and, if no termination has occurred, payments of salary and cash
compensation shall resume. If the Executive is discharged with Cause not later than forty-five (45)
days after the giving of the Notice of Intent to Discharge, all payments withheld during the period
of suspension shall be deemed forfeited and shall not be included in the Standard Termination
Entitlements. If a Final Discharge Notice is given later than forty-five (45) days, but sooner than
ninety (90) days, after the giving of the Notice of Intent to Discharge, all payments made to the
Executive during the period beginning with the giving of the Notice of Intent to Discharge and
ending with the Executive’s discharge with Cause shall be retained by the Executive and shall not
be applied to offset the Standard Termination Entitlements. If the Company does not give a Final
Discharge Notice to the Executive within ninety (90) days after giving a Notice of Intent to
Discharge, the Notice of Intent to Discharge shall be deemed withdrawn and any future action to
discharge the Executive with Cause shall require the giving of a new Notice of Intent to Discharge.
Section 12. Discharge without Cause.
The Company may discharge the Executive at any time during the Employment Period and, unless
such discharge constitutes a discharge with Cause:
(a) The Company shall pay and deliver to the Executive (or in the event of his death
before payment, to his estate and surviving dependents and beneficiaries, as applicable) the
Standard Termination Entitlements.
(b) In addition to the Standard Termination Entitlements:
(i) During the Remaining Unexpired Employment Period, the Company shall provide
for the Executive and his dependents continued group life, health (including
hospitalization, medical and major medical), dental, accident and long-term
disability insurance benefits on substantially the same terms and conditions
(including any required premium-sharing arrangements, co-payments and deductibles)
in effect for them immediately prior to the Executive’s termination. The coverage
provided under this section 12(b)(i) may, at the election of the Company, be
secondary to the coverage provided as part of the Standard Termination Entitlements
and to any employer-paid coverage provided by a subsequent employer or through
Medicare, with the result that benefits under the other coverages will offset the
coverage required by this section 12(b)(i).
(ii) The Company shall make a lump sum payment to the Executive (or, in the
event of his death before payment, to his estate), in an amount equal to the
estimated present value of the salary that the Executive would have earned if he had
continued working for the Company during the Remaining Unexpired Employment Period
at the highest annual rate of salary achieved during the period of three (3) years
ending immediately prior to the date of termination (the “Salary Severance
Payment”). The Salary Severance Payment shall be computed using the following
formula:
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where: “SSP” is the amount of the Salary Severance Payment (before the deduction of
applicable federal, state and local withholding taxes); “BS” is the highest annual
rate of salary achieved by the Executive during the period of three (3) years ending
immediately prior to the date of termination; “PR” is the number of payroll periods
that occur during a year under the Company’s normal payroll practices; “I” equals
the applicable federal short term rate established under section 1274 of the
Internal Revenue Code of 1986 (the “Code”) for the month in which the Executive’s
termination of employment occurs (the “Short Term AFR”) and “n” equals the product
of the Remaining Unexpired Employment Period at the Executive’s termination of
employment (expressed in years and fractions of years) multiplied by the number of
payroll periods that occur during a year under the Company’s normal payroll
practices. The Salary Severance Payment shall be made on the fifth (5th) business
day after the Executive’s termination of employment and shall be in lieu of any
claim to a continuation of base salary which the Executive might otherwise have and
in lieu of cash severance benefits under any severance benefits program which may be
in effect for officers or employees of the Company.
(iii) The Company shall make a lump sum payment to the Executive (or, in the
event of his death before payment, to his estate), in an amount equal to the
estimated present value of the annual bonuses (if any) that the Executive would have
earned if he had continued working for the Company during the Remaining Unexpired
Employment Period at the highest annual rate of salary achieved during the period of
three (3) years ending immediately prior to the date of termination (the “Bonus
Severance Payment”). The Bonus Severance Payment shall be computed using the
following formula:
BSP = SSP x (ABP / ASP)
where: “BSP” is the amount of the Bonus Severance Payment (before the deduction of
applicable federal, state and local withholding taxes); “SSP” is the amount of the
Salary Severance Payment (before the deduction of applicable federal, state and
local withholding taxes); “ABP” is the aggregate of the annual bonuses paid or
declared (whether or not paid) for the most recent period of three (3) calendar
years to end on or before the Executive’s termination of employment; and “ASP” is
the aggregate base salary actually paid to the Executive during such period of three
(3) calendar years (excluding any year for which no bonus was declared or paid). The
Bonus Severance Payment shall be made on the fifth (5th) business day after the
Executive’s termination of employment and shall be in lieu of any claim to a
continuation of participation in annual bonus plans of the Company which the
Executive might otherwise have.
(iv) The Company shall pay to the Executive (or in the event of his death, to
his estate), an amount equal to the excess (if any) of: (A) the present value of the
aggregate benefits to which he would be entitled under any and all tax-qualified and
non-tax-qualified defined benefit plans maintained by, or covering employees of, the
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Company (the “Pension Plans”) if he had continued working for the Company
during the Remaining Unexpired Employment Period; over (B) the present value of the
benefits to which the Executive and his spouse and/or designated beneficiaries are
actually entitled under such plans (the “Pension Severance Payment”). The Pension
Severance Payment shall be computed according to the following formula:
PSP = PPB – APB
where: “PSP” is the amount of the Pension Severance Payment (before deductions for
applicable federal, state and local withholding taxes); “APB” is the aggregate lump
sum present value of the actual vested pension benefits payable under the Pension
Plans in the form of a straight life annuity beginning at the earliest date
permitted under the Pension Plans, computed on the basis of the Executive’s life
expectancy at the earliest date on which payments under the Pension Plans could
begin, determined by reference to Table VI of section 1.72-9 of the Income Tax
Regulations (the “Assumed Life Expectancy”), and on the basis of an interest rate
assumption equal to the “applicable interest rate” determined in accordance with
section 417(e)(3) of the Code (the “417(e) Rate”); and “PPB” is the lump sum present
value of the pension benefits (whether or not vested) that would be payable under
the Pension Plans in the form of a straight life annuity beginning at the earliest
date permitted under the Pension Plans, computed on the basis that the Executive’s
actual age at termination of employment is his attained age as of his last birthday
that would occur during the Remaining Unexpired Employment Period, that his service
for benefit accrual purposes under the Pension Plans is equal to the aggregate of
his actual service plus the Remaining Unexpired Employment Period, that his average
compensation figure used in determining his accrued benefit is equal to the highest
annual rate of salary achieved by the Executive during the period of three (3) years
ending immediately prior to the date of termination, that the Executive’s life
expectancy at the earliest date on which payments under the Pension Plans could
begin is the Assumed Life Expectancy and that the interest rate assumption used is
equal to the 417(e) Rate. The Pension Severance Payment shall be converted into the
same form, and paid at the same time, and in the same manner, as benefits under the
corresponding non-qualified plan, or, if no such non-qualified plan exists, shall be
paid in a lump sum on the fifth (5th) business day after the Executive’s termination
of employment and shall be in lieu of any claim to any actual increase in his
accrued benefits under the Pension Plans in respect of the Remaining Unexpired
Employment Period.
(v) The Company shall pay to the Executive (or in the event of his death, to
his estate) an amount equal to the present value of the additional employer
contributions that would have been credited directly to his account(s) under any and
all tax-qualified and non-tax qualified defined contribution plans maintained by, or
covering employees of, the Company (the “Non-ESOP DC Plans”), plus the fair market
value of the additional shares of employer securities or other property that would
have been allocated to his account as a result of employer contributions or
dividends under any tax-qualified leveraged employee stock ownership plan and any
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related non-tax-qualified supplemental plan maintained by, or covering employees of,
the Company (the “ESOP Plans”) if he had continued in employment during the
Remaining Unexpired Employment Period (the “Defined Contribution Severance
Payment”). The Defined Contribution Severance Payment shall be computed according to
the following formula:
DCSP = [SSP x (EC / BS)] + [(STK + PROP) x Y]
where: “DCSP” is the amount of the Defined Contribution Severance Payment (before
deductions for applicable federal, state and local withholding taxes); “SSP” is the
amount of the Salary Severance Payment (before deductions for applicable federal,
state and local withholding taxes); “EC” is the amount of employer contributions
actually credited to the Executive’s accounts under the Non-ESOP Plans for the last
plan year to end before his termination of employment; “BS” is the Executive’s
compensation taken into account in computing EC; “Y” is the aggregate (expressed in
years and fractions of years) of the Remaining Unexpired Employment Period and the
number of years and fractions of years that have elapsed between the end of plan
year for which EC was computed and the date of the Executive’s termination of
employment; “STK” is the fair market value (determined by the final reported sales
price for stock of the same class on the last trading day before the Executive’s
termination of employment) of the employer securities actually allocated to the
Executive’s accounts under the ESOP Plans in respect of employer contributions and
dividends applied to loan amortization payments for the last plan year to end before
his termination of employment; and “PROP” is the fair market value (determined as of
the day before the Executive’s termination of employment using the same valuation
methodology used to value the assets of the ESOP Plans) of the property other than
employer securities actually allocated to the Executive’s accounts under the ESOP
Plans in respect of employer contributions and dividends applied to loan
amortization payments for the last plan year to end before his termination of
employment. The Defined Contribution Severance Payment shall be converted into the
same form, and paid at the same time, and in the same manner, as benefits under the
corresponding non-qualified plan, or, if no such non-qualified plan exists, shall be
paid in a lump sum on the fifth (5th) business day after the Executive’s termination
of employment and shall be in lieu of any claim to any actual increase in his
accounts under the Non-ESOP DC Plans and the ESOP Plans in respect of the Remaining
Unexpired Employment Period.
(vi) At the election of the Company made within 30 days following the
Executive’s termination of employment, upon the surrender of options or appreciation
rights issued to the Executive under any stock option or appreciation rights plan or
program maintained by, or covering employees of, the Company, the Company shall make
a lump sum payment in an amount equal to the product of:
(A) the excess of (I) the fair market value of a share of stock of the
same class as the stock subject to the option or appreciation right,
determined as of the date of termination of employment, over (II) the
exercise price per
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share for such option or appreciation right, as specified in or under
the relevant plan or program; multiplied by
(B) the number of shares with respect to which options or appreciation
rights are being surrendered.
For the purpose of computing this payment, the Executive shall be deemed fully
vested in all options and appreciation rights under any stock option or appreciation
rights plan or program maintained by, or covering employees of, the Company, even if
he is not vested under such plan or program.
(vii) At the election of the Company made within 30 days following the
Executive’s termination of employment, upon the surrender of any shares awarded to
the Executive under any restricted stock plan maintained by, or covering employees
of, the Company, the Company shall make a lump sum payment in an amount equal to the
product of:
(A) the fair market value of a share of stock of the same class of
stock granted under such plan, determined as of the date of the Executive’s
termination of employment; multiplied by
(B) the number of shares which are being surrendered.
For purposes of computing this payment, the Executive shall be deemed fully
vested in all shares awarded under any restricted stock plan maintained by, or
covering employees of, the Company, even if he is not vested under such plan;
provided, however, that any shares of restricted stock for which vesting is
conditioned on the attainment of one or more performance goals, with the intent that
the award of such shares should satisfy the requirements of qualified
performance-based compensation (within the meaning of Treasury Regulation section
1.162-27(e)), shall vest only in accordance with the terms of the associated plan
and award, and the Company’s right to elect to purchase such shares pursuant to this
Section 12(b)(vii) shall not expire until thirty (30) days after such time as the
vesting of such shares is no longer conditioned on the attainment of any such
performance goal.
The payments and benefits described in section 12(b) are referred to in this Agreement as the
“Additional Termination Entitlements”.
Section 13. Resignation.
(a) The Executive may resign from his employment with the Company at any time. A resignation
under this section 13 shall be effected by notice of resignation given by the Executive to the
Company and shall take effect on the later of the effective date of termination specified in such
notice or the date on which the notice of termination is deemed given by the Executive. The
Executive’s resignation from any of the positions within the Company to which he has been assigned
shall be deemed a resignation from all such positions.
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(b) The Executive’s resignation shall be deemed to be for “Good Reason” if the effective date
of resignation occurs within ninety (90) days after any of the following:
(i) the failure of the Company (whether by act or omission of the Board, or otherwise)
to appoint or re-appoint or elect or re-elect the Executive to the position(s) with the
Company specified in section 3 of this Agreement (other than to any such position as an
officer of the Board) or to a more senior office;
(ii) if the Executive is or becomes a member of the Board, the failure of the Company’s
shareholders (whether in an election in which the Executive stands as a nominee or in an
election where the Executive is not a nominee) to elect or re-elect the Executive to
membership at the expiration of his term of membership, unless such failure is a result of
the Executive’s refusal to stand for election;
(iii) a material failure by the Company, whether by amendment of its certificate of
incorporation or organization, by-laws, action of the Board or otherwise, to vest in the
Executive the functions, duties, or responsibilities prescribed in section 3 of this
Agreement (other than such functions, duties or responsibilities associated with a position
as an officer of the Board); provided that the Executive shall have given notice of such
failure to the Company, and the Company has not fully cured such failure within thirty (30)
days after such notice is deemed given;
(iv) any reduction of the Executive’s rate of base salary in effect from time to time,
whether or not material, or any failure (other than due to reasonable administrative error
that is cured promptly upon notice) to pay any portion of the Executive’s compensation as
and when due;
(v) any change in the terms and conditions of any compensation or benefit program in
which the Executive participates which, either individually or together with other changes,
has a material adverse effect on the aggregate value of his total compensation package,
disregarding for this purpose any change that results from an across-the-board reduction
that affects all similarly situated employees in a similar manner; provided that the
Executive shall have given notice of such material adverse effect to the Company, and the
Company has not fully cured such failure within thirty (30) days after such notice is deemed
given;
(vi) any material breach by the Company of any material term, condition or covenant
contained in this Agreement; provided that the Executive shall have given notice of such
material adverse effect to the Company, and the Company has not fully cured such failure
within thirty (30) days after such notice is deemed given; or
(vii) a change in the Executive’s principal place of employment, without his consent,
to a place that is not the principal executive office of the Bank, or a relocation of the
Bank’s principal executive office to a location that is both more than twenty-five (25)
miles away from the Executive’s principal residence and more than twenty-five (25) miles
away from the location of the Bank’s principal executive office on the Initial Effective
Date.
Page 13 of 25
In all other cases, a resignation by the Executive shall be deemed to be without Good Reason.
(c) In the event of the Executive’s resignation before the expiration of the Employment
Period, the Company shall pay and deliver the Standard Termination Entitlements. In addition, if
the Executive’s resignation is deemed to be a resignation with Good Reason, the Company shall also
pay and deliver the Additional Termination Entitlements.
Section 14. Terms and Conditions of the Additional Termination Entitlements.
The Company and the Executive hereby stipulate that the damages which may be incurred by the
Executive following any termination of employment are not capable of accurate measurement as of the
date first above written and that the Additional Termination Entitlements constitute reasonable
damages therefor under the circumstances and shall be payable without any requirement of proof of
actual damage and without regard to the Executive’s efforts, if any, to mitigate damages. The
Company and the Executive further agree that the Company may condition the payment and delivery of
the Additional Termination Entitlements on the receipt of the Executive’s resignation from any and
all positions which he holds as an officer, director or committee member with respect to the
Company, the Bank or any subsidiary or affiliate of either of them.
Section 15. Termination Upon or Following a Change of Control.
(a) A “Change of Control” shall be deemed to have occurred upon the happening of any of the
following events:
(i) the consummation of a reorganization, merger or consolidation of the Company with
one or more other persons, other than a transaction following which:
(A) at least 51% of the equity ownership interests of the entity resulting from
such transaction are beneficially owned (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (“Exchange Act”))
in substantially the same relative proportions by persons who, immediately prior to
such transaction, beneficially owned (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) at least 51% of the outstanding equity ownership interests
in the Company; and
(B) at least 51% of the securities entitled to vote generally in the election
of directors of the entity resulting from such transaction are beneficially owned
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) in
substantially the same relative proportions by persons who, immediately prior to
such transaction, beneficially owned (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) at least 51% of the securities entitled to vote generally in
the election of directors of the Company;
(ii) the acquisition of all or substantially all of the assets of the Company or
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Page 14 of 25
Act) of 25% or more of the outstanding securities of the Company entitled to vote
generally in the election of directors by any person or by any persons acting in concert;
(iii) a complete liquidation or dissolution of the Company;
(iv) the occurrence of any event if, immediately following such event, at least 50% of
the members of the Board of Directors of the Company do not belong to any of the following
groups:
(A) individuals who were members of the Board of Directors of the Company on
the Initial Effective Date; or
(B) individuals who first became members of the Board of Directors of the
Company after the Initial Effective Date either:
(1) upon election to serve as a member of the Board of Directors of the
Company by affirmative vote of three-quarters of the members of such board,
or of a nominating committee thereof, in office at the time of such first
election; or
(2) upon election by the shareholders of the Board of Directors of the
Company to serve as a member of such board, but only if nominated for
election by affirmative vote of three-quarters of the members of the Board
of Directors of the Company, or of a nominating committee thereof, in office
at the time of such first nomination;
provided, however, that such individual’s election or nomination did not result from
an actual or threatened election contest (within the meaning of Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other actual or threatened
solicitation of proxies or consents (within the meaning of Rule 14a-11 of Regulation
14A promulgated under the Exchange Act) other than by or on behalf of the Board of
Directors of the Company; or
(v) any event which would be described in section 15(a)(i), (ii), (iii) or (iv) if the
term “Bank” were substituted for the term “Company” therein.
In no event, however, shall a Change of Control be deemed to have occurred as a result of any
acquisition of securities or assets of the Company, the Bank, or a subsidiary of either of them, by
the Company, the Bank, or any subsidiary of either of them, or by any employee benefit plan
maintained by any of them. For purposes of this section 15(a), the term “person” shall have the
meaning assigned to it under sections 13(d)(3) or 14(d)(2) of the Exchange Act.
(b) For purposes of this Agreement, a “Pending Change of Control” shall mean: (i) the signing
of a definitive agreement for a transaction which, if consummated, would result in a Change of
Control; (ii) the commencement of a tender offer which, if successful, would result in a
Page 15 of 25
Change of Control; or (iii) the circulation of a proxy statement seeking proxies in opposition
to management in an election contest which, if successful, would result in a Change of Control.
(c) Notwithstanding anything in this Agreement to the contrary, if the Executive’s employment
with the Company terminates due to death or disability within one (1) year after the occurrence of
a Pending Change of Control and if a Change of Control occurs within two (2) years after such
termination of employment, he (or in the event of his death, his estate) shall be entitled to
receive the Standard Termination Entitlements and the Additional Termination Entitlements that
would have been payable if a Change of Control had occurred on the date of his termination of
employment and he had resigned with Good Reason immediately thereafter; provided, that payment
shall be deferred without interest until, and shall be payable immediately upon, the actual
occurrence of a Change of Control; provided further, however, that if and to the extent necessary
to comply with section 409A of the Code, such payment shall only be made if a Change of Control is
actually consummated within two years after such termination of employment and shall be made on the
earliest of (A) the consummation of a Change of Control that is also a “change in control event”
within the meaning of section 409A of the Code and (B) the second anniversary of the Executive’s
death or “disability” within the meaning of section 409A of the Code.
(d) Notwithstanding anything in this Agreement to the contrary: (i) in the event of the
Executive’s resignation within sixty (60) days after the occurrence of a Change of Control, he
shall be entitled to receive the Standard Termination Entitlements and Additional Termination
Entitlements that would be payable if his resignation were a resignation for Good Reason, without
regard to the actual circumstances of his resignation; and (ii) for a period of one (1) year after
the occurrence of a Change of Control, no discharge of the Executive shall be deemed a discharge
with Cause unless the votes contemplated by section 11(a) of this Agreement are supported by at
least two-thirds of the members of the Board at the time the vote is taken who were also members of
the Board immediately prior to the Change of Control.
(e) Notwithstanding anything in this Agreement to the contrary, for purposes of computing the
Additional Termination Entitlements due upon a termination of employment that occurs, or is deemed
to have occurred, after a Change of Control, the Remaining Unexpired Employment Period shall be
deemed to be three (3) full years.
Section 16. Tax Indemnification.
(a) If the Executive’s employment terminates under circumstances entitling him (or in the
event of his death, his estate) to the Additional Termination Entitlements, the Company shall pay
to the Executive (or in the event of his death, his estate) an additional amount intended to
indemnify him against the financial effects of the excise tax imposed on excess parachute payments
under section 280G of the Code (the “Tax Indemnity Payment”). The Tax Indemnity Payment shall be
determined under the following formula:
where:
Page 16 of 25
| E = | the percentage rate at which an excise tax is assessed under section 4999 of the Code; | ||
| P = | the amount with respect to which such excise tax is assessed, determined without regard to this section 16; | ||
| FI = | the highest marginal rate of income tax applicable to the Executive under the Code for the taxable year in question; | ||
| SLI = | the sum of the highest marginal rates of income tax applicable to the Executive under all applicable state and local laws for the taxable year in question; and | ||
| M = | the highest marginal rate of Medicare tax applicable to the Executive under the Code for the taxable year in question. |
Such computation shall be made at the expense of the Company by an attorney or a firm of
independent certified public accountants selected by the Executive and reasonably satisfactory to
the Company (the “Tax Advisor”) and shall be based on the following assumptions: (i) that a change
in ownership, a change in effective ownership or control, or a change in the ownership of a
substantial portion of the assets, of the Bank or the Company has occurred within the meaning of
section 280G of the Code (a “280G Change of Control”); (ii) that all direct or indirect payments
made to or benefits conferred upon the Executive on account of his termination of employment are
“parachute payments” within the meaning of section 280G of the Code; and (iii) that no portion of
such payments is reasonable compensation for services rendered prior to the Executive’s termination
of employment.
(b) With respect to any payment that is presumed to be a parachute payment for purposes of
section 280G of the Code, the Tax Indemnity Payment shall be made to the Executive on the earlier
of the date the Company, the Bank or any direct or indirect subsidiary or affiliate of the Company
or the Bank is required to withhold such tax or the date the tax is required to be paid by the
Executive, unless, prior to such date, the Company delivers to the Executive the written opinion,
in form and substance reasonably satisfactory to the Executive, of the Tax Advisor or of an
attorney or firm of independent certified public accountants selected by the Company and reasonably
satisfactory to the Executive, to the effect that the Executive has a reasonable basis on which to
conclude that (i) no 280G Change in Control has occurred, or (ii) all or part of the payment or
benefit in question is not a parachute payment for purposes of section 280G of the Code, or (iii)
all or a part of such payment or benefit constitutes reasonable compensation for services rendered
prior to the 280G Change of Control, or (iv) for some other reason which shall be set forth in
detail in such letter, no excise tax is due under section 4999 of the Code with respect to such
payment or benefit (the “Opinion Letter”). If the Company delivers an Opinion Letter, the Tax
Advisor shall recompute, and the Company shall make, the Tax Indemnity Payment in reliance on the
information contained in the Opinion Letter.
(c) In the event that the Executive’s liability for the excise tax under section 4999 of the
Code for a taxable year is subsequently determined to be different than the amount with respect to
which the Tax Indemnity Payment is made, the Executive or the Company, as the case may
Page 17 of 25
be, shall
pay to the other party at the time that the amount of such excise tax is finally determined, an
appropriate amount, plus interest, such that the payment made under section 16(b), when
increased by the amount of the payment made to the Executive under this section 16(c), or when
reduced by the amount of the payment made to the Company under this section 16(c), equals the
amount that should have properly been paid to the Executive under section 16(a). The interest paid
to the Company under this section 16(c) shall be determined at the rate provided under section
1274(b)(2)(B) of the Code. The payment made to the Executive shall include such amount of interest
as is necessary to satisfy any interest assessment made by the Internal Revenue Service and an
additional amount equal to any monetary penalties assessed by the Internal Revenue Service on
account of an underpayment of the excise tax. To confirm that the proper amount, if any, was paid
to the Executive under this section 16, the Executive shall furnish to the Company a copy of each
tax return which reflects a liability for an excise tax, at least 20 days before the date on which
such return is required to be filed with the Internal Revenue Service. Nothing in this Agreement
shall give the Company any right to control or otherwise participate in any action, suit or
proceeding to which the Executive is a party as a result of positions taken on his federal income
tax return with respect to his liability for excise taxes under section 4999 of the Code. Any
payment pursuant to this section 16(c) shall be made promptly following the relevant subsequent
determination, and shall in any case be made no later than the last day of the calendar year
following the calendar year in which any additional taxes for which the Tax Indemnity Payment is to
be made are remitted to the Internal Revenue Service.
Section 17. Covenant Not To Compete.
The Executive hereby covenants and agrees that, in the event of his termination of employment
with the Company prior to the expiration of the Employment Period, for a period of one year
following the date of his termination of employment with the Company, he shall not, without the
written consent of the Company, become an officer, employee, consultant, director or trustee of any
savings bank, savings and loan association, savings and loan holding company, bank or bank holding
company, or any direct or indirect subsidiary or affiliate of any such entity, that entails working
within any city or county in the State of New Jersey or any other county in which the Company or
the Bank maintains an office (“Competitive Market”); provided, however, that this section 17 shall
not apply if the Executive is entitled to the Additional Termination Entitlements.
Section 18. 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 with any of them concerning their properties,
operations 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) until the same ceases to be material (or becomes so ascertainable or
available); provided, however, that nothing in this section 18 shall prevent the Executive, with or
without the Company’s consent, from participating in or disclosing documents or information in
connection with
Page 18 of 25
any judicial or administrative investigation, inquiry or proceeding to the extent
that such participation or disclosure is required under applicable law.
Section 19. Solicitation.
The Executive hereby covenants and agrees that, for a period of one year following his
termination of employment with the Company, he shall not, without the written consent of the
Company and the Bank, either directly or indirectly:
(a) solicit, offer employment to, or take any other action intended, or that a
reasonable person acting in like circumstances would expect, to have the effect of causing
any officer or employee of the Company, the Bank or any of their respective subsidiaries or
affiliates to terminate his or her employment and accept employment or become affiliated
with, or provide services for compensation in any capacity whatsoever to, any savings bank,
savings and loan association, bank, bank holding company, savings and loan holding company,
or other institution engaged in the business of accepting deposits or making loans, that
conducts business within the Competitive Market;
(b) provide any information, advice or recommendation with respect to any such officer
or employee to any savings bank, savings and loan association, bank, bank holding company,
savings and loan holding company, or other institution engaged in the business of accepting
deposits, or making loans, that conducts business within the Competitive Market, that is
intended, or that a reasonable person acting in like circumstances would expect, to have the
effect of causing such officer to terminate his employment and accept employment or become
affiliated with, or provide services for compensation in any capacity whatsoever to such
other entity;
(c) solicit, provide any information, advice or recommendation or take any other action
intended, or that a reasonable person acting in like circumstances would expect, to have the
effect of causing any customer of the Company to terminate an existing business or
commercial relationship with the Company.
Section 20. No Effect on Employee Benefit Plans or Programs.
The termination of the Executive’s employment during the term of this Agreement or thereafter,
whether by the Company or by the Executive, shall have no effect on the rights and obligations of
the parties hereto under the Company’s qualified or non-qualified retirement, pension, savings,
thrift, profit-sharing or stock bonus plans, group life, health (including hospitalization, medical
and major medical), dental, accident and long term disability insurance plans or such other
employee benefit plans or programs, or compensation plans or programs, as may be maintained by, or
cover employees of, the Company from time to time; provided, however, that nothing in this
Agreement shall be deemed to duplicate any compensation or benefits provided under any agreement,
plan or program covering the Executive to which the Company is a party and any duplicative amount
payable under any such agreement, plan or program shall be applied as an offset to reduce the
amounts otherwise payable hereunder.
Page 19 of 25
Section 21. 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 its 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. Failure of the Company to obtain from any
successor its express written assumption of the Company’s obligations hereunder at least 60 days in
advance of the scheduled effective date of any such succession shall be deemed a material breach of
this Agreement.
Section 22. Notices.
Any communication required or permitted to be given under this Agreement, including any
notice, direction, designation, consent, instruction, objection or waiver, 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:
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Xxxxxxxxx, Xxx Xxxxxx 00000
If to the Company:
Xxxxxx City Bancorp, Inc.
West 00 Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000-0000
West 00 Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Chairman, Compensation Committee
with a copy to:
Xxxxxxx Xxxxxxxx & Wood llp
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. Xxxxxx Xxxxxx, Esq.
Section 23. Indemnification for Attorneys’ Fees.
(a) The Company’s obligation to make the payments provided for in this Agreement and otherwise
to perform its obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
Page 20 of 25
employment or take
any other action by way of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement and such amounts shall not be reduced whether or not the Executive
obtains other employment. Unless it is determined that the Executive has acted frivolously or in
bad faith, the Company shall pay as incurred, to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably incur as a result of or in
connection with his consultation with legal counsel or arising out of any action, suit, proceeding,
tax controversy or contest (regardless of the outcome thereof) by the Company, the Executive or
others regarding the validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of any contest by the
Executive about the amount of any payment pursuant to this Agreement), plus in each case interest
on any delayed payment at the applicable Federal rate provided for in section 7872(f)(2)(A) of the
Code. This section 23(b) shall apply whether such consultation, action, suit, proceeding or contest
arises before, on, after or as a result of a Change of Control.
(b) Any payment or reimbursement to effect indemnification under this section 23 shall be made
no later than the last day of the calendar year following (i) the calendar year in which the
Executive incurs the expense, or (ii) if later, in the case of fees or expenses incurred due to a
tax audit or litigation addressing the existence or amount of a tax liability regarding any excise
tax that is subject to tax indemnification by the Company under section 16 of this Agreement, (A)
the calendar year in which such tax liability is paid, or (B), if no tax liability is to be paid as
a result of such tax audit or litigation, the calendar year in which the audit is completed or
there is a final and nonappealable settlement or other resolution of the litigation, or (iii), if
later, within sixty (60) days after the settlement or resolution that gives rise to the Executive’s
right to reimbursement; provided, however, that the Executive shall have submitted to the Company
documentation supporting such expenses at such time and in such manner as the Company may
reasonably require.
Section 24. Severability.
A determination that any provision of this Agreement is invalid or unenforceable shall not
affect the validity or enforceability of any other provision hereof.
Section 25. Waiver.
Failure to insist upon strict compliance with any of the terms, covenants or conditions hereof
shall not be deemed a waiver of such term, covenant, or condition. A waiver of any provision of
this Agreement must be made in writing, designated as a waiver, and signed by the party against
whom its enforcement is sought. Any waiver or relinquishment of any right or power hereunder at any
one or more times shall not be deemed a waiver or relinquishment of such right or power at any
other time or times.
Section 26. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, and all of which shall constitute one and the same Agreement.
Section 27. Governing Law.
Page 21 of 25
Except to the extent preempted by federal law, this Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New Jersey applicable to
contracts entered into and to be performed entirely within the State of New Jersey. The federal and
state courts having jurisdiction in Bergen County, New Jersey shall have exclusive jurisdiction
over
any claim, action, complaint or lawsuit brought under the terms of this Agreement or in any
way relating to the rights or obligations of any person under or the acts or omissions of the Bank,
the Board or any duly authorized person acting on their behalf in relation to the Agreement. By
executing this Agreement, the Executive, for himself and any other person claiming any rights under
the Agreement though him, agrees to submit himself, and any such legal action described herein that
he shall bring, to the sole jurisdiction of such courts for the adjudication and resolution of such
disputes.
Section 28. Headings and Construction.
The headings of sections in this Agreement are for convenience of reference only and are not
intended to qualify the meaning of any section. Any reference to a section number shall refer to a
section of this Agreement, unless otherwise stated.
Section 29. Entire Agreement; Modifications.
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 (including, without limitation,
the Prior Agreement), understandings or representations relating to the subject matter hereof. No
modifications of this Agreement shall be valid unless made in writing and signed by the parties
hereto; provided, however, that this Agreement shall be subject to amendment in the future in such
manner as the Company shall reasonably deem necessary or appropriate to effect compliance with
section 409A of the Code and the regulations thereunder (“Section 409A”) and to avoid the
imposition of penalties and additional taxes under Section 409A, it being the express intent of the
parties that any such amendment shall not diminish the economic benefit of the Agreement to the
Executive on a present value basis.
Section 30. Non-Duplication.
In the event that the Executive shall perform services for the Bank or any other direct or
indirect subsidiary or affiliate of the Company or the Bank, any compensation or benefits provided
to the Executive by such other employer shall be applied to offset the obligations of the Company
hereunder, it being intended that this Agreement set forth the aggregate compensation and benefits
payable to the Executive for all services to the Company, the Bank and all of their respective
direct or indirect subsidiaries and affiliates.
Section 31. Relative Obligations of the Bank and the Company.
If the Executive performs services for both the Bank and the Company, any entitlement of the
Executive to severance compensation and other termination benefits under this Agreement shall be
determined on the basis of the aggregate compensation payable to the Executive by the Bank and the
Company, and liability therefor shall be apportioned between the Bank and the Company in the same
manner as compensation paid to the Executive for services to each of them;
Page 22 of 25
provided, however, that
the Company shall be jointly and severally liable with the Bank for all obligations of the Bank
under the Bank Agreement. It is the intent and purpose of this section 31 that the Executive have
the same legal and economic rights that he would have if all of his services were
rendered to and all of his compensation was paid by the Company. This section 31 shall be
construed and enforced to give effect to such intent and purpose.
Section 32. Required Regulatory Provisions.
Notwithstanding anything herein contained to the contrary, any payments to the Executive by
the Company, whether pursuant to this Agreement or otherwise, are subject to and conditioned upon
their compliance with section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C. §1828(k), and
any regulations promulgated thereunder and Federal Deposit Insurance Corporation regulation 12 CFR
Part 359, Golden Parachute and Indemnification Payments.
Section 33. Section 409A of the Internal Revenue Code.
The Executive and the Company acknowledge that each of the payments and benefits promised to
the Executive under this Agreement must either comply with the requirements of Section 409A or
qualify for an exception from compliance. To that end, the Executive and the Company agree that:
(a) the insurance benefits provided in section 6(a) and the indemnification
provided in section 6(b) are intended to be excepted from compliance with Section
409A pursuant to Treasury Regulation section 1.409A-1(b)(10) as insurance and
indemnification against claims based on acts or omissions as a service provider;
(b) the reimbursements of expenses and in-kind benefits described in section 8
and general legal fee reimbursements described in section 23 are intended to satisfy
the requirements for “reimbursement or in-kind benefit plans” described in Treasury
Regulation section 1.409A-3(i)(1)(iv) and shall be administered to satisfy such
requirements;
(c) the reimbursements of expenses incurred due to a tax audit or litigation
addressing a tax liability in section 23 are intended to satisfy the requirements
for reimbursement of expenses incurred under such audits or litigation described in
Treasury Regulation section 1.409A-3(i)(1)(v);
(d) the payment described in section 9(a) is intended to be excepted from
compliance with Section 409A pursuant to Treasury Regulation section 1.409A-1(b)(3)
as payment made pursuant to the Company’s customary payment timing arrangement;
(e) the benefits and payments described in section 9(b) are expected to comply
with or be excepted from compliance with Section 409A on their own terms;
Page 23 of 25
(f) the benefits and payments on disability described in section 10 are
intended to be excepted from compliance with Section 409A as “disability pay”
pursuant to Treasury Regulation section 1.409A-1(a)(5);
(g) the welfare benefits provided in kind under section 12(b)(i) are intended
to be excepted from compliance with Section 409A as welfare benefits pursuant to
Treasury Regulation section 1.409A-1(a)(5) and/or as benefits not includible in
gross income; and
(h) the Tax Indemnity Payment provided under section 16 is intended to satisfy
the requirements for a “tax gross-up payment” described in Treasury Regulation
section 1.409A-3(i)(1)(v).
In the case of a payment that is not excepted from compliance with Section 409A, and that is
not otherwise designated to be paid immediately upon a permissible payment event within the meaning
of Treasury Regulation section 1.409A-3(a), the payment shall not be made prior to, and shall, if
necessary, be deferred (with interest at the annual rate of 6%, compounded monthly from the date of
the Executive’s termination of employment to the date of actual payment) to and paid on the later
of the day five (5) days after the Executive’s earliest separation from service (within the meaning
of Treasury Regulation section 1.409A-1(h)) and, if the Executive is a specified employee (within
the meaning of Treasury Regulation section 1.409A-1(i)) on the date of his separation from service,
the first day of the seventh month following the Executive’s separation from service. Each amount
payable under this plan that is required to be deferred beyond the Executive’s separation from
service, shall be deposited on the date on which, but for such deferral, the Company would have
paid such amount to the Executive, in a grantor trust which meets the requirements of Revenue
Procedure 92-65 (as amended or superseded from time to time), the trustee of which shall be a
financial institution selected by the Company with the approval of the Executive (which approval
shall not be unreasonably withheld or delayed), pursuant to a trust agreement the terms of which
are approved by the Executive (which approval shall not be unreasonably withheld or delayed) (the
“Rabbi Trust”), and payments made shall include earnings on the investments made with the assets of
the Rabbi Trust, which investments shall consist of short-term investment-grade fixed-income
securities or units of interest in mutual funds or other pooled investment vehicles designed to
invest primarily in such securities. Furthermore, this Agreement shall be construed and
administered in such manner as shall be necessary to effect compliance with Section 409A.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed and the Executive has
hereunto set his hand, all as of the day and year first above written.
/s/
Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx |
||
| Xxxxxx City Bancorp, Inc. | ||
| Attest: |
Page 24 of 25
By
|
/s/ Xxxxxxxx X. Xxxxxxxxx | By | /s/ Xxxxxx X. Xxxxxxxx, Xx. | |||||
Title: Senior Vice President,
Treasurer and Corporate Secretary
|
Title: Chairman, President and
Chief Executive Officer |
[Seal]
Page 25 of 25
