DRAFT
FORM OF
CLIFTON SAVINGS BANCORP, INC.
EMPLOYMENT AGREEMENT
This AGREEMENT ("Agreement") is hereby entered into as of ________________,
2003, by and between CLIFTON SAVINGS BANCORP, INC. (the "Company"), a
corporation organized under the laws of Delaware, with its principal offices at
0000 Xxx Xxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000, and _______________
("Executive"). Any reference to the "Bank" in this Agreement shall mean Clifton
Savings Bank, S.L.A. a subsidiary of the Company, or any successor to Xxxxxxx
Savings Bank, S.L.A.
WHEREAS, the Company desires to continue to assure itself of the services of
Executive for the period provided for in this Agreement; and
WHEREAS, Executive and the Board of Directors of the Company desire to enter
into a new employment agreement setting forth the terms and conditions of the
continuing employment of Executive and the related rights and obligations of
each of the parties.
NOW, THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is hereby agreed as follows:
1. POSITION AND RESPONSIBILITIES.
(a) During the period of Executive's employment under this Agreement, Executive
agrees to serve as _______________________ of the Company. Executive shall have
responsibility for the general management and control of the business and
affairs of the Company and its subsidiaries and shall perform all duties and
shall have all powers which are commonly incident to the offices of
__________________ or which, consistent with those offices, are delegated to him
by the Board of Directors of the Company (the "Board of Directors"). [During the
term of this Agreement, Executive also agrees to serve as a director of the
Company.]
(b) During the period of Executive's employment under this Agreement, except
for periods of absence occasioned by illness, vacation, and reasonable leaves of
absence, Executive shall devote substantially all of his business time,
attention, skill and efforts to the faithful performance of his duties under
this Agreement, including activities and services related to the organization,
operation and management of the Company and its subsidiaries, as well as
participation in community, professional and civic organizations; provided,
however, that Executive may serve, or continue to serve, on the boards of
directors of, and hold any other offices or positions in, companies or
organizations listed by Executive on his annual conflict of interest reporting.
(c) The Company will furnish Executive with the working facilities and staff
customary for executive officers with the titles and duties set forth in this
Agreement and as are necessary for him to perform his duties. The location of
such facilities and staff shall be at the principal
administrative offices of the Company.
2. TERM OF EMPLOYMENT.
(a) The term of this Agreement shall be (i) the initial term, consisting of the
period commencing on the date of this Agreement (the "Effective Date") and
ending on the third anniversary of the Effective Date, plus (ii) any and all
extensions of the initial term made pursuant to this Section 2.
(b) Commencing on the Effective Date and on each day thereafter, the term under
this Agreement shall be renewed automatically for an additional one (1) day
period beyond the then effective expiration date without action by any party,
provided that neither the Company, on the one hand, nor Executive, on the other,
shall have given at least sixty (60) days written notice of its or his desire
that the term not be renewed. In the case such notice is given by one party to
the other, the term of this Agreement shall become fixed and shall end on the
third anniversary of the date of written notice.
(c) Notwithstanding anything contained in this Agreement to the contrary,
either Executive or the Company may terminate Executive's employment with the
Company at any time during the term of this Agreement, subject to the terms and
conditions of this Agreement.
3. COMPENSATION AND BENEFITS.
(a) BASE SALARY. The Company agrees to pay Executive during the term of this
Agreement a base salary at the rate of $________ per annum, payable in
accordance with the Company's customary payroll practices. The Board of
Directors of the Company shall review annually the rate of Executive's base
salary based upon factors they deem relevant, and may maintain or increase his
base salary, provided that no such action shall reduce the rate of base salary
below the rate in effect on the Effective Date. In the absence of action by the
Board of Directors, Executive shall continue to receive a base salary at the per
annum rate specified on the Effective Date or, if another rate has been
established under the provisions of this Section 3, the rate last properly
established by action of the Board of Directors.
(b) INCENTIVE COMPENSATION. Executive shall be entitled to participate in
discretionary bonuses or other incentive compensation programs that the Board of
Directors may award from time to time to senior management employees pursuant to
bonus plans, or otherwise.
(c) CLUB DUES. In addition to any other compensation provided for under this
Agreement, the Company or the Bank shall pay Executive an amount sufficient, on
an after-tax basis, to maintain his membership at __________________________.
(d) AUTOMOBILE AND CELLULAR PHONE. The Company or the Bank shall provide
Executive with, and Executive shall have the primary use of, an automobile owned
or leased by the Company or the Bank and the Company or the Bank shall pay (or
reimburse Executive) for all expenses of insurance, registration, operation and
maintenance of the automobile. Executive shall comply with reasonable reporting
and expense limitations on the use of such automobile, as the
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Company or the Bank may establish from time to time, and the Company or the Bank
shall annually include on Executive's Form W-2 any amount attributable to
Executive's personal use of such automobile. The Company or the Bank shall also
provide Executive with a cellular phone and shall pay (or reimburse Executive)
for all reasonable expenses related to the business use of such phone.
(e) VACATION AND HOLIDAYS. Executive shall take vacation at a time mutually
agreed upon by the Company and Executive. Executive shall receive his base
salary and other benefits during periods of vacation. Executive shall also be
entitled to paid legal holidays in accordance with the policies of the Company
or the Bank.
(f) OTHER EMPLOYEE BENEFITS. In addition to any other compensation or benefits
provided for under this Agreement, Executive shall be entitled to continue to
participate in any employee benefit plans, arrangements and perquisites of the
Company or the Bank in which he participated or was eligible to participate as
of the Effective Date. Executive shall also be entitled to participate in any
employee benefits or perquisites the Company or the Bank offers to full-time
employees or executive management in the future. The Company or the Bank will
not, without Executive's prior written consent, make any changes in such plans,
arrangements or perquisites which would adversely affect Executive's rights or
benefits thereunder without separately providing for an arrangement that ensures
Executive receives or will receive the economic value that Executive would
otherwise lose as a result of such adverse effect. Without limiting the
generality of the foregoing provisions of this paragraph, Executive shall be
entitled to participate in or receive benefits under all plans relating to stock
options, restricted stock awards, stock purchases, pension, profit sharing,
employee stock ownership, supplemental retirement, group life insurance, medical
and other health and welfare coverage that are made available by the Company or
the Bank at the Effective Time or at any time in the future during the term of
this Agreement, subject to and on a basis consistent with the terms, conditions
and overall administration of such plans and arrangements.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined) during
Executive's term of employment under this Agreement, the provisions of this
Section 4 shall apply. Unless Executive otherwise agrees, as used in this
Agreement, an "Event of Termination" shall mean and include any one or more of
the following: (i) the termination by the Company of Executive's full-time
employment for any reason other than a termination governed by Section 7 of this
Agreement; or (ii) Executive's resignation from the Company, upon, any (A)
notice to Executive of non-renewal of the term of this Agreement (B) failure to
reappoint Executive as _____________________, (C) material change in Executive's
functions duties, or responsibilities with the Company or its subsidiaries,
which change would cause Executive's position(s) to become of lesser
responsibility, importance, or scope from the position(s) and attributes thereof
described in Section 1 of this Agreement, (D) relocation of Executive's
principal place of employment by more than twenty-five (25) miles from its
location at the Effective Date of this Agreement, (E) material reduction in the
benefits and perquisites to Executive from those being provided as of the
Effective Date of this Agreement, (F) liquidation or dissolution of the Company
or the Bank, or (G) breach of this Agreement by the Company.
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Upon the occurrence of any event described in clauses (A), (B), (C), (D), (E),
(F) or (G), above, Executive shall have the right to terminate his employment
under this Agreement by resignation upon not less than sixty (60) days prior
written notice given within six (6) full calendar months after the event giving
rise to Executive's right to elect to terminate his employment.
(b) Upon Executive's termination of employment in accordance with paragraph (a)
of this Section 4, on the Date of Termination, as defined in Section 8 of this
Agreement, the Company shall be obligated to pay Executive, or, in the event of
his death following the Date of Termination, his beneficiary or beneficiaries,
or his estate, as the case may be, an amount equal to the sum of: (i) the base
salary and incentive compensation that would have been paid to Executive for the
remaining term of this Agreement had the Event of Termination not occurred
(based on Executive's then current base salary and most recently paid or accrued
bonus at the time of the Event of Termination) plus (ii) the value, as
calculated by a recognized firm customarily performing such valuation, of any
stock options which, as of the Date of Termination, have been granted to
Executive but are not exercisable by Executive and the value of any restricted
stock awards which have been granted to Executive, but in which Executive does
not have a non-forfeitable or fully-vested interest as of the Date of
Termination plus (iii) the value of all employee benefits that would have been
provided to Executive for the remaining term of this Agreement had the Event of
Termination not occurred, based on the most recent level of contribution,
accrual or other participation by or on behalf of Executive. At the election of
Executive, which election is to be made prior to the Date of Termination, such
payments shall be made in a lump sum. In the event that no election is made,
payment to Executive will be made on a monthly basis in approximately equal
installments during the remaining unexpired term of this Agreement. Such
payments shall not be reduced in the event Executive obtains other employment
following termination of employment.
(c) In addition to the payments provided for in paragraph (b) of this Section
4, upon Executive's termination of employment in accordance with the provisions
of paragraph (a) of this Section 4, to the extent that the Company or the Bank
continues to offer any life, medical, health, disability or dental insurance
plan or arrangement in which Executive or his dependents participates as of the
date of the Event of Termination (each being a "Welfare Plan"), Executive and
his covered dependents shall continue participating in such Welfare Plans,
subject to the same premium contributions on the part of Executive as were
required immediately prior to the Event of Termination until the earlier of (i)
his death; (ii) his employment by another employer other than one of which he is
the majority owner; or (iii) the end of the remaining term of this Agreement. If
the Company or the Bank does not offer the Welfare Plans at any time after the
Event of Termination, then the Company shall provide Executive with a payment
equal to the premiums for such benefits for the period which runs until the
earlier of (i) his death; (ii) his employment by another employer other than one
of which he is the majority owner; or (iii) the end of the remaining term of
this Agreement.
5. CHANGE IN CONTROL.
(a) For purposes of this Agreement, a "Change in Control" of the Bank or
Company shall mean one of the following events: (i) there occurs a change in
control of the Bank, as defined or determined either by the Bank's primary
federal regulator or under regulations promulgated by
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such regulator; (ii) as a result of, or in connection with a merger or other
business combination, sale or assets or contested election, the persons who were
directors of the Bank before such transaction or event cease to constitute a
majority of the Board of Directors of the Bank or its successor; (iii) the Bank
transfers all or substantially all of its assets to another corporation or
entity which is not an affiliate of the Bank; (iv) the Bank is merged or
consolidated with another corporation or entity and, as a result of such merger
or consolidation, less than 60% of the equity interest in the surviving or
resulting corporation is owned by the former shareholders or depositors of the
Bank; (v) the Company merges into or consolidates with another corporation, or
merges another corporation into the Company and, as a result, less than a
majority of the combined voting power of the resulting corporation immediately
after the merger or consolidation is held by persons who were stockholders of
the Company immediately before the merger or consolidation; (vi) the Company
files, or is required to file, a report on Schedule 13D, or another form or
schedule required under Sections 13(d) or 14(d) of the Securities Exchange Act
of 1934, disclosing that the filing person or persons acting in concert has or
have become the beneficial owner of 25% or more of a class of the Company's
voting securities, except for beneficial ownership of Company voting shares held
in a fiduciary capacity by an entity of which the Company directly or indirectly
owns 50% or more of its outstanding voting securities; (vii) during any period
of two consecutive years, individuals who constitute the Company's Board of
Directors at the beginning of the two-year period cease for any reason to
constitute at least a majority thereof, provided that any person becoming a
director subsequent to the date hereof whose election was approved by a vote of
at least two-thirds of the directors who were directors at the beginning of the
two-year period shall be deemed to have also been a director at the beginning of
such period; or (viii) the Company sells to a third party all or substantially
all of its assets.
(b) If any of the events described in paragraph (a) of this Section 5,
constituting a Change in Control, have occurred or the Board of Directors
determines that a Change in Control has occurred, Executive shall be entitled to
the benefits provided for in paragraphs (c), (d), and (e) of this Section 5 upon
his termination of employment at any time during the term of this Agreement on
or after the date the Change in Control occurs due to (i) Executive's dismissal;
(ii) Executive's resignation following any demotion, loss of title, office or
significant authority or relocation of his principal place of employment by more
than twenty-five (25) miles from its location immediately prior to the Change in
Control or (iii) Executive's resignation for any reason within ninety (90) days
of the effective date of a Change in Control, unless Executive's termination is
for Just Cause as defined in Section 7 of this Agreement; provided, however,
that such benefits shall be reduced by any payment made under Section 4 of this
Agreement.
(c) Upon the occurrence of a Change in Control followed by Executive's
termination of employment, as provided for in paragraph (b) of this Section 5,
the Company shall pay Executive, or in the event of his subsequent death, his
beneficiary or beneficiaries, or his estate, as the case may be, as severance
pay or liquidated damages, or both, the greater of the payments and benefits due
for the remaining term of the Agreement pursuant to the provisions of Section 4
of this agreement, or three (3) times the sum of the following items:
(i) the average of the Executive's Base Salary (as defined in Section 3(a)
of the Agreement), at the highest rate in effect during each of the five
(5) most recently
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completed calendar years preceding the Change in Control;
(ii) the average of the cash incentive compensation or bonus paid to
Executive, or accrued on Executive's behalf, with respect to each of the
five (5) most recently completed calendar years preceding the Change in
Control;
(iii) the average of the income realized by Executive during each of the
five (5) most recently completed calendar years preceding the Change in
Control as a result of the vesting of any restricted shares of Company
common stock held by or on behalf of Executive;
(iv) the sum of the average of the value of the deferrals, allocations or
contributions made by Executive or on behalf of Executive by the Bank,
during each of the five (5) most recently completed calendar years
preceding the Change in Control, under the Bank's employee stock ownership
and 401(k) savings plans (or any other tax-qualified defined contribution
retirement plan sponsored by the Bank) and any supplemental executive
retirement plan (or any similar provision of any similar plan) in which
Executive participates as of the Change in Control. For purposes of this
clause (iv), the value of allocations made to Executive under the employee
stock ownership plan or the supplemental executive retirement plan shall be
valued by reference to the fair market value of Company common stock as of
the date of allocation; and
(v) the average of any taxable income included by the Bank or the Company
on Executive's Form W-2 or reflected on a Form 1099 provided by the Bank or
the Company to Executive, excluding A) income attributable to Executive's
exercise of a non-statutory stock option, B) income related to Executive's
disqualifying disposition of an incentive stock option to acquire Company
common stock, C) income related to the distribution of benefits under any
tax-qualified or non-tax-qualified retirement or deferred compensation plan
or arrangement sponsored by the Company or the Bank (including the Xxxxxxx
Savings Bank, S.L.A. Amended and Restated Directors' Retirement Plan), or
D) income attributable to payments made in lieu of any benefits payable
under a plan covered by the preceding clause C) of this paragraph, during
each of the five (5) most recently completed calendar years preceding the
Change in Control.
At the election of Executive, which election is to be made within thirty (30)
days in advance of the Date of Termination on or following a Change in Control,
such payment may be made in a lump sum (without discount for early payment) on
or immediately following the Date of Termination (which may be the date a Change
in Control occurs) or paid in equal monthly installments during the thirty-six
(36) months following Executive's termination. In the event that no election is
made, payment to Executive will be made on a monthly basis during the thirty-six
(36) months following Executive's termination.
(d) Upon the occurrence of a Change in Control and Executive's termination of
employment in connection therewith, to the extent that the Company or the Bank
continues to offer any life, medical, health, disability or dental insurance
plan or arrangement in which Executive or his dependents participated
immediately prior to the Change in Control (each being a "Welfare
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Plan"), Executive and his covered dependents shall continue participating in
such Welfare Plans, subject to the same premium contributions on the part of
Executive as were required immediately prior to the Change in Control, until the
earlier of (i) Executive's death; (ii) his employment by another employer other
than one of which he is the majority owner; or (iii) the expiration of
thirty-six (36) months. If the Company or the Bank does not offer the Welfare
Plans at any time after the Change in Control, the Company shall provide
Executive with a payment equal to the premiums for such benefits for the period
which runs until the earlier of (i) his death; (ii) his employment by another
employer other than one of which he is the majority owner; or (iii) the
expiration of thirty-six (36) months.
(e) The use or provision of any membership, license, automobile use, or other
perquisites shall be continued during the remaining term of the Agreement on the
same financial terms and obligations as were in place immediately prior to the
Change in Control. To the extent that any item referred to in this paragraph
will, at the end of the term of this Agreement, no longer be available to
Executive, Executive will have the option to purchase all rights then held by
the Company or the Bank to such item for a price equal to the then fair market
value of the item.
(f) In the event that Executive is receiving monthly payments pursuant to
Section 5(c) hereof, on an annual basis, thereafter, between the dates of
January 1 and January 31 of each year, Executive shall elect whether the balance
of the amount payable under the Agreement at that time shall be paid in a lump
sum or on a pro rata basis pursuant to such section. Such election shall be
irrevocable for the year for which such election is made by Executive.
6. CHANGE IN CONTROL RELATED PROVISIONS.
Notwithstanding the provisions of Section 5, in no event shall the aggregate
payments or benefits to be made or afforded to Executive under said paragraphs
(the "Termination Benefits") constitute an "excess parachute payment" under
Section 280G of the Code or any successor thereto, and in order to avoid such a
result, Termination Benefits will be reduced, if necessary, to an amount (the
"Non-Triggering Amount"), the value of which is one dollar ($1.00) less than an
amount equal to three (3) times Executive's "base amount", as determined in
accordance with said Section 280G. The allocation of the reduction required
hereby among the Termination Benefits provided by Section 5 shall be determined
by Executive.
7. TERMINATION FOR JUST CAUSE
The phrase termination for "Just Cause" shall mean termination because of
Executive's personal dishonesty, willful misconduct, any breach of fiduciary
duty involving personal profit, intentional failure to perform stated duties,
willful violation of any law, rule, regulation (other than traffic violations or
similar offenses), final cease and desist order or material breach of any
provision of this Agreement. Notwithstanding the foregoing, Executive shall not
be deemed to have been terminated for Just Cause unless and until there shall
have been delivered to him a Notice of Termination which shall include a copy of
a resolution duly adopted by the affirmative vote of not less than
[three-fourths (3/4)] of the members of the Board of Directors at a meeting of
the Board of Directors called and held for that purpose (after reasonable notice
to Executive and an opportunity for him, together with counsel, to be heard
before the Board of Directors), finding
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that in the good faith opinion of the Board of Directors, Executive was guilty
of conduct justifying termination for Just Cause and specifying the particulars
thereof in detail. Executive shall not have the right to receive compensation or
other benefits for any period after termination for Just Cause. During the
period beginning on the date of the Notice of Termination for Just Cause
pursuant to Section 8 hereof through the Date of Termination, stock options
granted to Executive under any stock option plan shall not be exercisable nor
shall any unvested awards granted to Executive under any stock benefit plan of
the Bank, the Company or any subsidiary or affiliate thereof, vest. At the Date
of Termination, such stock options and any such unvested awards shall become
null and void and shall not be exercisable by or delivered to Executive at any
time subsequent to such termination for Just Cause.
8. NOTICE.
(a) Any purported termination by the Company or by Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(b) "Date of Termination" shall mean the date specified in the Notice of
Termination (which, in the case of a termination for Just Cause, shall not be
less than thirty (30) days from the date such Notice of Termination is given).
9. POST-TERMINATION OBLIGATIONS.
All payments and benefits to Executive under this Agreement shall be subject to
Executive's compliance with Section 10 for one (1) full year after the earlier
of the expiration of this Agreement or termination of Executive's employment
with the Company. Executive shall, upon reasonable notice, furnish such
information and assistance to the Company as may reasonably be required by the
Company in connection with any litigation in which it or any of its subsidiaries
or affiliates is, or may become, a party.
10. NON-COMPETITION AND NON-DISCLOSURE.
(a) Upon any termination of Executive's employment pursuant to Section 4 of
this Agreement, Executive agrees not to compete with the Company or its
subsidiaries for a period of one (1) year following such termination in any
city, town or county in which Executive's normal business office is located and
the Company or any of its subsidiaries has an office or has filed an application
for regulatory approval to establish an office, determined as of the effective
date of such termination, except as agreed to pursuant to a resolution duly
adopted by the Board of Directors. Executive agrees that during such period and
within said cities, towns and counties, Executive shall not work for or advise,
consult or otherwise serve with, directly or indirectly, any entity whose
business materially competes with the depository, lending or other business
activities of the Company or its subsidiaries. The parties hereto, recognizing
that irreparable injury will result to the Company or its subsidiaries, its
business and property in the event of
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Executive's breach of this Subsection 10(a), agree that in the event of any such
breach by Executive, the Company or its subsidiaries will be entitled, in
addition to any other remedies and damages available, to an injunction to
restrain the violation hereof by Executive, Executive's partners, agents,
servants, employees and all persons acting for or under the direction of
Executive. Executive represents and admits that in the event of the termination
of his employment pursuant to Section 4 of this Agreement, Executive's
experience and capabilities are such that Executive can obtain employment in a
business engaged in other lines and/or of a different nature than the Company or
its subsidiaries, and that the enforcement of a remedy by way of injunction will
not prevent Executive from earning a livelihood. Nothing herein will be
construed as prohibiting the Company or its subsidiaries from pursuing any other
remedies available to the Company or its subsidiaries for such breach or
threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that his knowledge of the business
activities and plans for business activities of the Company and its subsidiaries
as it may exist from time to time, is a valuable, special and unique asset of
the business of the Company and its subsidiaries. Executive will not, during or
after the term of his employment, disclose any knowledge of the past, present,
planned or considered business activities of the Company and its subsidiaries
thereof to any person, firm, corporation or other entity for any reason or
purpose whatsoever unless expressly authorized by the Board of Directors or
required by law. Notwithstanding the foregoing, Executive may disclose any
knowledge of banking, financial and/or economic principles, concepts or ideas
which are not solely and exclusively derived from the business plans and
activities of the Company or its subsidiaries. In the event of a breach or
threatened breach by Executive of the provisions of this Section 10(b), the
Company will be entitled to an injunction restraining Executive from disclosing,
in whole or in part, the knowledge of the past, present, planned or considered
business activities of the Company or its subsidiaries or from rendering any
services to any person, firm, corporation or other entity to whom such
knowledge, in whole or in part, has been disclosed or is threatened to be
disclosed. Nothing herein will be construed as prohibiting the Company from
pursuing any other remedies available to the Company for such breach or
threatened breach, including the recovery of damages from Executive.
11. DEATH AND DISABILITY.
(a) DEATH. Notwithstanding any other provision of this Agreement to the
contrary, in the event of Executive's death during the term of this Agreement,
the Company shall immediately pay his estate any salary and bonus accrued but
unpaid as of the date of his death, and, for a period of six (6) months after
Executive's death, the Company shall continue to provide his dependents medical
insurance benefits existing on the date of his death and shall pay Executive's
designated beneficiary all compensation that would otherwise be payable to him
pursuant to Section 3(a) of this Agreement. This provision shall not negate any
rights Executive or his beneficiaries may have to death benefits under any
employee benefit plan of the Company or the Bank.
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(b) DISABILITY.
(i) The Company or Executive may terminate Executive's employment after
having established Executive's Disability. For purposes of this agreement,
"Disability" means a physical or mental infirmity that impairs Executive's
ability to substantially perform his duties under this Agreement and that
results in Executive becoming eligible for long-term disability benefits under
the Company's or the Bank's long-term disability plan (or, if the Company or the
Bank has no such plan in effect, that impairs Executive's ability to
substantially perform his duties under this Agreement for a period of one
hundred eighty (180) consecutive days). The Board of Directors shall determine
whether or not Executive is and continues to be permanently disabled for
purposes of this Agreement in good faith, based upon competent medical advice
and other factors that they reasonably believe to be relevant. As a condition to
any benefits, the Board of Directors may require Executive to submit to such
physical or mental evaluations and tests as it deems reasonably appropriate.
(ii) In the event of Disability, Executive's obligation to perform services
under this Agreement will terminate. In the event of such termination, Executive
shall continue to receive (x) one hundred percent (100%) of his monthly Base
Salary (at the annual rate in effect on the Date of Termination) through the one
hundred eightieth (180th) day following the Date of Termination by reason of
Disability and (y) sixty percent (60%) of his monthly base salary from the one
hundred eighty-first (181st) day following termination through the earlier of
the date of his death or the date he attains age 70. Such payments shall be
reduced by the amount of any short- or long-term disability benefits payable to
Executive under any disability program sponsored by the Company or the Bank. In
addition, during any period of Executive's Disability, Executive and his
dependents shall, to the greatest extent possible, continue to be covered under
all benefit plans (including, without limitation, retirement plans and medical,
dental and life insurance plans) of the Company or the Bank in which Executive
participated prior to the occurrence of Executive's Disability, on the same
terms as if Executive were actively employed by the Company.
12. SOURCE OF PAYMENTS.
(a) All payments provided for in this Agreement shall be timely paid in cash or
check from the general funds of the Company, subject to Section 12(b).
(b) Notwithstanding any provision herein to the contrary, to the extent that
payments and benefits, as provided by this Agreement, are paid to or received by
Executive under the Employment Agreement in effect between Executive and the
Bank (the "Bank Agreement"), such compensation payments and benefits paid by the
Bank will be subtracted from any amount due simultaneously to Executive under
similar provisions of this Agreement. Payments pursuant to this Agreement and
the Bank Agreement shall be allocated in proportion to the level of activity and
the time expended on such activities by Executive as determined by the Company
and the Bank.
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13. EFFECT OF PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
This Agreement contains the entire understanding between the parties hereto and
supersedes any prior change in control or employment agreement between the
Company or any predecessor of the Company and Executive, except that this
Agreement shall not affect or operate to reduce any benefit or compensation
inuring to Executive of a kind elsewhere provided. No provision of this
Agreement shall be interpreted to mean that Executive is subject to receiving
fewer benefits than those available to him without reference to this Agreement.
14. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge or hypothecation, or to execution,
attachment, levy or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null, void
and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive, the Company and their respective successors and assigns.
15. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument in
writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been waived,
nor shall there be any estoppel against the enforcement of any provision of this
Agreement, except by written instrument of the party charged with such waiver or
estoppel. No such written waiver shall be deemed a continuing waiver unless
specifically stated therein, and each such waiver shall operate only as to the
specific term or condition waived and shall not constitute a waiver of such term
or condition for the future as to any act other than that specifically waived.
16. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
17. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
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18. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New Jersey without
regard to principles of conflicts of law of that State.
19. ARBITRATION.
Any dispute or controversy arising under or in connection with this Agreement
shall be settled exclusively by arbitration, conducted before a panel of three
(3) arbitrators sitting in a location selected by Executive within fifty (50)
miles from the location of the Bank, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that
Executive shall be entitled to seek specific performance of his right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
In the event any dispute or controversy arising under or in connection with
Executive's termination is resolved in favor of Executive, whether by judgment,
arbitration or settlement, Executive shall be entitled to the payment of all
back-pay, including salary, bonuses and any other cash compensation, fringe
benefits and any compensation and benefits due Executive under this Agreement.
20. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by Executive pursuant to any dispute
or question of interpretation relating to this Agreement shall be paid or
reimbursed by the Company, only if Executive is successful pursuant to a legal
judgment, arbitration or settlement.
21. INDEMNIFICATION.
The Company shall provide Executive (including his heirs, executors and
administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense and shall indemnify Executive (and his
heirs, executors and administrators) to the fullest extent permitted under New
Jersey law against all expenses and liabilities reasonably incurred by him in
connection with or arising out of any action, suit or proceeding in which he may
be involved by reason of his having been a director or officer of the Company
(whether or not he continues to be a director or officer at the time of
incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgments, court costs and attorneys' fees and
the cost of reasonable settlements.
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22. SUCCESSOR TO THE COMPANY.
The Company shall require any successor or assignee, whether direct or indirect,
by purchase, merger, consolidation or otherwise, to all or substantially all of
the business or assets of the Bank or the Company, expressly and unconditionally
to assume and agree to perform the Company's obligations under this Agreement,
in the same manner and to the same extent that the Company would be required to
perform if no such succession or assignment had taken place.
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SIGNATURES
IN WITNESS WHEREOF, Xxxxxxx Savings Bancorp, Inc. has caused this Agreement to
be executed and its seal to be affixed hereunto by its duly authorized officer
and its directors, and Executive has signed this Agreement, on the ____ day of
______________, 2003.
ATTEST: XXXXXXX SAVINGS BANCORP, INC.
By:
----------------------------- -----------------------------------
Corporate Secretary For the Entire Board of Directors
[SEAL]
WITNESS: EXECUTIVE
----------------------------- -----------------------------------
Corporate Secretary
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