EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Agreement is made effective as of the ____ day of _____________,
2005 by and among Brooklyn Federal Savings Bank (the "Bank"), a federally
chartered stock savings bank, with its principal administrative office at 00
Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, Brooklyn Federal Bancorp, Inc. (the
"Company"), a federal mid-tier stock holding company, with its principal
administrative office at 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, and
___________________ ("Executive").
WHEREAS, Executive is currently employed as the President and Chief
Executive Officer of the Bank; and
WHEREAS, the Bank has converted from the mutual to the stock form of
organization and has become a wholly-owned subsidiary of the Company, in
connection with the Bank's mutual holding company reorganization; and
WHEREAS, the Bank desires to assure itself of the continued services of
Executive pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES
During the period of his employment hereunder, Executive agrees to serve
as President and Chief Executive Officer of the Bank. During said period,
Executive also agrees to serve, if elected, as an officer and director of any
subsidiary or affiliate of the Bank.
2. TERMS AND DUTIES
(a) The period of Executive's employment under this Agreement shall
begin as of the date first above written and shall continue for thirty-six (36)
full calendar months thereafter. Commencing on _____________, 200__ and
continuing on ______________ of each year thereafter (the "Anniversary Date"),
this Agreement shall renew for an additional year such that the remaining term
shall be three (3) years unless written notice of non-renewal ("Non-Renewal
Notice") is provided to Executive at least thirty (30) days and not more than
sixty (60) days prior to any such Anniversary Date, that this Agreement shall
terminate at the end of thirty-six (36) months following such Anniversary Date.
Prior to each notice period for non-renewal, the disinterested members of the
Board of Directors of the Bank ("Board") will conduct a comprehensive
performance evaluation and review of Executive for purposes of determining
whether to extend the Agreement, and the results thereof shall be included in
the minutes of the Board's meeting.
(b) During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall faithfully perform his duties hereunder
including activities and services related to the organization, operation and
management of the Bank.
3. COMPENSATION AND REIMBURSEMENT
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Section 2(b). The Bank
shall pay Executive as compensation a salary of not less than $______________
per year ("Base Salary"). Such Base Salary shall be payable bi-weekly. During
the period of this Agreement, Executive's Base Salary shall be reviewed at least
annually; the first such review will be made no later than [January 31] of each
year during the term of this Agreement and shall be effective from the first day
of said month through the end of the calendar year. Such review shall be
conducted by a Committee designated by the Board, and the Board may increase,
but not decrease, Executive's Base Salary (any increase in Base Salary shall
become the "Base Salary" for purposes of this Agreement). In addition to the
Base Salary provided in this Section 3(a), the Bank shall provide Executive at
no cost to Executive with all such other benefits as are provided uniformly to
permanent full-time employees of the Bank.
(b) The Bank will provide Executive with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from immediately prior
to the beginning of the term of this Agreement, and 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 limiting the generality of the foregoing provisions of this
Section 3(b), Executive will be entitled to participate in or receive benefits
under any employee benefit plans including but not limited to, retirement plans,
supplemental retirement plans, pension plans, profit-sharing plans,
health-and-accident plans, medical coverage or any other employee benefit plan
or arrangement made available by the Bank in the future to its senior executives
and key management employees, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and arrangements.
Executive will be entitled to incentive compensation and bonuses as provided in
any plan of the Bank in which Executive is eligible to participate (and he shall
be entitled to a pro rata distribution under any incentive compensation or bonus
plan as to any year in which a termination of employment occurs, other than
Termination for Cause). Nothing paid to Executive under any such plan or
arrangement will be deemed to be in lieu of other compensation to which
Executive is entitled under this Agreement.
(c) In addition to the Base Salary provided for by Paragraph (a) of this
Section 3, the Bank shall pay or reimburse Executive for all reasonable travel
and other reasonable expenses incurred by Executive in performing his
obligations under this Agreement and may provide such additional compensation in
such form and such amounts as the Board may from time to time determine.
4. OUTSIDE ACTIVITIES
Executive may serve as a member of the board of directors of business,
community and charitable organizations subject to the approval of the Board,
provided that in each case such service shall not materially interfere with the
performance of his duties under this Agreement or present any conflict of
interest. Such service to and participation in outside organizations shall be
presumed for these purposes to be for the benefit of the Bank, and the Bank
shall reimburse Executive his reasonable expenses associated therewith.
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5. WORKING FACILITIES AND EXPENSES
Executive's principal place of employment shall be at the Bank's
principal executive offices. The Bank shall provide Executive, at his principal
place of employment, with a private office, stenographic services and other
support services and facilities suitable to his position with the Bank and
necessary or appropriate in connection with the performance of his duties under
this Agreement. The Bank shall provide Executive with an automobile suitable to
the position of President and Chief Executive Officer of the Bank, and such
automobile may be used by Executive in carrying out his duties under this
Agreement and for his personal use such as commuting between his residence and
his principal place of employment. The Bank shall reimburse Executive for the
cost of maintenance, use and servicing of such automobile. The Bank shall
reimburse Executive for his ordinary and necessary business expenses incurred in
connection with the performance of his duties under this Agreement, including,
without limitation, fees for memberships in such clubs and organizations that
Executive and the Board mutually agree are necessary and appropriate to further
the business of the Bank, and travel and reasonable entertainment expenses.
Reimbursement of such expenses shall be made upon presentation to the Bank of an
itemized account of the expenses in such form as the Bank may reasonably
require.
6. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
The provisions of this Section 6 shall in all respects be subject to the
terms and conditions stated in Sections 9 and 17.
(a) The provisions of this Section 6 shall apply upon the occurrence of
an Event of Termination (as herein defined) during Executive's term of
employment under this Agreement. 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 Bank or the Company of Executive's
full-time employment hereunder for any reason other than (A)
Disability or Retirement, as defined in Section 7 below, or (B)
Termination for Cause as defined in Section 8 hereof; or
(ii) Executive's resignation from the Bank's employ, upon any
(A) failure to elect or reelect or to appoint or reappoint
Executive as President and Chief Executive Officer,
(B) material change in Executive's function, duties, or
responsibilities, which change would cause Executive's
position to become one of lesser responsibility,
importance, or scope from the position and attributes
thereof described in Section 1, above,
(C) liquidation or dissolution of the Bank or Company other
than liquidations or dissolutions that are caused by
reorganizations that do not affect the status of
Executive, or
(D) material breach of this Agreement by the Bank.
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Upon the occurrence of any event described in clauses (ii) (A), (B), (C)or (D),
above, Executive shall have the right to elect to terminate his employment under
this Agreement by resignation upon sixty (60) days prior written notice given
within a reasonable period of time not to exceed four calendar months after the
initial event giving rise to said right to elect. Notwithstanding the preceding
sentence, in the event of a continuing breach of this Agreement by the Bank,
Executive, after giving due notice within the prescribed time frame of an
initial event specified above, shall not waive any of his rights solely under
this Agreement and this Section 6 by virtue of the fact that Executive has
submitted his resignation but has remained in the employment of the Bank and is
engaged in good faith discussions to resolve any occurrence of an event
described in clauses (A), (B), (C) or (D) above.
(iii) Executive's involuntary termination by the Bank or
voluntary resignation from the Bank's employ on the
effective date of, or at any time following, a Change in
Control during the term of this Agreement. For these
purposes, a Change in Control of the Bank or the Company
shall mean a change in control of a nature that: (i)
would be required to be reported in response to Item
5.01 of the current report on Form 8-K, as in effect on
the date hereof, pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); or
(ii) results in a Change in Control of the Bank or the
Company within the meaning of the Home Owners' Loan Act,
as amended, and applicable rules and regulations
promulgated thereunder (collectively, the "HOLA") as in
effect at the time of the Change in Control; or (iii)
without limitation such a Change in Control shall be
deemed to have occurred at such time as (a) any "person"
(as the term is used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing
25% or more of the combined voting power of Company's
outstanding securities, except for any securities
purchased by the Bank's employee stock ownership plan or
trust; or (b) individuals who constitute the Board on
the date hereof (the "Incumbent Board") 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 three-quarters of the directors comprising
the Incumbent Board, or whose nomination for election by
the Company's stockholders was approved by the same
Nominating Committee serving under an Incumbent Board,
shall be, for purposes of this clause (b), considered as
though he were a member of the Incumbent Board; or (c) a
plan of reorganization, merger, consolidation, sale of
all or substantially all the assets of the Bank or the
Company or similar transaction in which the Bank or
Company is not the surviving institution occurs or is
effected; or (d) a proxy statement soliciting proxies
from stockholders of the Company, by someone other than
the current management of the Company is distributed,
seeking stockholder approval of a plan of
reorganization, merger or consolidation of the Company
or similar transaction with one or more corporations as
a result of which the outstanding shares of the class of
securities then subject to the plan are to be exchanged
for or converted into cash or property or securities not
issued by the Company; or (e) a tender offer is made for
25% or more of the voting securities of the Company and
the shareholders owning beneficially or of record 25% or
more of the outstanding securities of the
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Company have tendered or offered to sell their shares
pursuant to such tender offer and such tendered shares
have been accepted by the tender offeror.
Notwithstanding anything in this subsection to the
contrary, a Change in Control shall not be deemed to
have occurred upon the conversion of the Company's
mutual holding company parent to stock form, or in
connection with any reorganization used to effect such a
conversion.
(b) Upon the occurrence of an Event of Termination, as defined in
Section 6(a)(i), (ii) or (iii), on the Date of Termination, as defined in
Section 9(b), the Bank 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, a sum equal to three (3) times the
sum of (i) Base Salary and (ii) the highest rate of bonus awarded to Executive
during the prior three years. At the election of Executive, which election is to
be made on an annual basis during the month of January, and which election is
irrevocable for the year in which made and upon the occurrence of an Event of
Termination, any payments shall be made in a lump sum, or paid bi-weekly during
the remaining term of this Agreement following Executive's termination. In the
event that no election is made, payment to Executive will be made on a bi-weekly
basis during the remaining term of this Agreement. Such payments shall not be
reduced in the event Executive obtains other employment following termination of
employment.
(c) Upon the occurrence of an Event of Termination, the Bank will cause
to be continued life, medical, dental and disability coverage substantially
identical to the coverage maintained by the Bank for Executive prior to his
termination. Such coverage shall continue for thirty-six (36) months from the
Date of Termination.
(d) Upon the occurrence of an Event of Termination, Executive will
immediately vest in any outstanding unvested stock options or shares of
restricted stock of the Company that have been awarded to him.
(e) Upon the occurrence of an Event of Termination, within 60 days (or
within such shorter period to the extent that information can be reasonably be
obtained) following his termination of employment with the Bank, a lump sum
payment in an amount equal to the present value of the Bank's contributions that
would have been made on his behalf under each of the Bank's (i) 401(k) Plan,
(ii) money purchase pension plan, and (iii) employee stock ownership plan (and
any other defined contribution plan maintained by the Bank) if he had continued
working for the Bank for a thirty-six (36) month period following his
termination earning the Base Salary that would have been achieved during the
remaining unexpired term of this Agreement (assuming, if a Change in Control has
occurred, that the annual Base Salary increases under Section 3(a) would apply
and, additionally, that such payment would continue for the remaining unexpired
term of this Agreement) and making the maximum amount of employee contributions
permitted, if any, under such plan or plans, where such present values are to be
determined using a discount rate of 6%.
(f) Notwithstanding the preceding paragraphs of this Section, in the
event that the aggregate payments or benefits to be made or afforded to
Executive under said paragraphs (the "Termination Benefits") would be deemed to
include an "excess parachute payment" under Section 280G of the Code or any
successor thereto, then such Termination Benefits will be
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reduced to an amount (the "Non-Triggering Amount"), the value of which is one
dollar ($1.00) less than an amount equal to the total amount of payments
permissible under Section 280G of the Code or any successor thereto.
7. TERMINATION UPON RETIREMENT, DISABILITY OR DEATH
For purposes of this Agreement, termination by the Bank of Executive's
employment based on "Retirement" shall mean termination of Executive's
employment by the Board of Directors upon Executive's attainment of age 65, or
such later date as determined by the Board of Directors of the Bank. Upon
termination of Executive's employment because of Retirement, Executive shall be
entitled to all benefits under any retirement plan of the Bank and other plans
to which Executive is a party, but Executive shall not be entitled to the
Termination Benefits specified in Section 6(b) through 6(e) hereof.
In the event Executive is unable to perform his duties under this
Agreement on a full-time basis for a period of six (6) consecutive months by
reason of illness or other physical or mental disability, the Bank may terminate
this Agreement, provided that the Bank shall continue to be obligated to pay
Executive his Base Salary for the remaining term of the Agreement, or one year,
whichever is the longer period of time, and provided further that any amounts
actually paid to Executive pursuant to any disability insurance or other similar
such program which the Bank has provided or may provide on behalf of its
employees or pursuant to any xxxxxxx'x or social security disability program
shall reduce the compensation to be paid to Executive pursuant to this
paragraph.
In the event of Executive's death during the term of the Agreement, his
estate, legal representatives or named beneficiaries (as directed by Executive
in writing) shall be paid Executive's Base Salary as defined in Paragraph 3(a)
at the rate in effect at the time Executive's death for a period of one (1) year
from the date of Executive's death, and the Bank will continue to provide
medical, dental, family and other benefits normally provided for an Executive's
family for one (1) year after Executive's death.
8. TERMINATION FOR CAUSE
The term "Termination for Cause" shall mean termination because of
Executive's personal dishonesty, incompetence, willful misconduct, any breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule, or regulation (other than minor
traffic violations or similar offenses) or final cease-and-desist order, or
material breach of any provision of this Agreement. In determining incompetence,
the acts or omissions shall be measured against standards generally prevailing
in the savings institutions industry. For purposes of this paragraph, no act or
failure to act on the part of Executive shall be considered "willful" unless
done, or omitted to be done, by Executive not in good faith and without
reasonable belief that Executive's action or omission was in the best interest
of the Bank. Notwithstanding the foregoing, Executive shall not be deemed to
have been Terminated for Cause unless and until there shall have been delivered
to him a copy of a resolution duly adopted by the affirmative vote of not less
than three-fourths of the members of the Board at a meeting of the Board 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),
finding that in the good faith opinion of the Board, Executive was guilty of
conduct justifying
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Termination for 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 Cause. Any stock options granted to Executive
under any stock option plan of the Bank, the Company or any subsidiary or
affiliate thereof, shall become null and void effective upon Executive's receipt
of Notice of Termination for Cause pursuant to Section 9 hereof, and shall not
be exercisable by Executive at any time subsequent to such Termination for
Cause.
9. NOTICE
(a) Any purported termination by the Bank 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 (A) if Executive's employment is
terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that he shall not have returned to the performance of his duties
on a full-time basis during such thirty (30) day period), and (B) if his
employment is terminated for any other reason, the date specified in the Notice
of Termination (which, in the case of a Termination for Cause, shall not be less
than thirty (30) days from the date such Notice of Termination is given).
(c) If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, except upon the voluntary
termination by Executive in which case the Date of Termination shall be the date
specified in the Notice, the Date of Termination shall be the date on which the
dispute is finally determined, either by mutual written agreement of the
parties, by a binding arbitration award, or by a final judgment, order or decree
of a court of competent jurisdiction (the time for appeal having expired and no
appeal having been perfected) and provided further that the Date of Termination
shall be extended by a notice of dispute only if such notice is given in good
faith and the party giving such notice pursues the resolution of such dispute
with reasonable diligence. Notwithstanding the pendency of any such dispute, the
Bank will continue to pay Executive his full compensation in effect when the
notice giving rise to the dispute was given (including, but not limited to, Base
Salary) and continue Executive as a participant in all compensation, benefit and
insurance plans in which he was participating when the notice of dispute was
given, until the dispute is finally resolved in accordance with this Agreement,
provided such dispute is resolved within the term of this Agreement. If such
dispute is not resolved within the term of the Agreement, the Bank shall not be
obligated, upon final resolution of such dispute, to pay Executive compensation
and other payments accruing beyond the term of the Agreement. Amounts paid under
this Section shall be offset against or reduce any other amounts due under this
Agreement.
10. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with paragraph (b) of this Section during the
term of this Agreement and for one (1) full year after the expiration or
termination hereof.
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(b) Executive shall, upon reasonable notice, furnish such information
and assistance to the Bank as may reasonably be required by the Bank in
connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party.
11. NON-COMPETITION
(a) Upon any termination of Executive's employment hereunder, other than
a termination, (whether voluntary or involuntary) in connection with a Change in
Control, as a result of which the Bank is paying Executive benefits under
Section 6 of this Agreement, Executive agrees not to compete with the Bank
and/or the Company for a period of one (1) year following such termination
within twenty-five (25) miles of any existing branch of the Bank or any
subsidiary of the Company or within twenty-five (25) miles of any office for
which the Bank, the Company or a Bank subsidiary of the Company 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. Executive agrees that during such period and within
said area, 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 Bank and/or the Company. The parties hereto, recognizing that
irreparable injury will result to the Bank and/or the Company, its business and
property in the event of Executive's breach of this Subsection 11(a) agree that
in the event of any such breach by Executive, the Bank and/or the Company 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, employers, employees and all persons acting for or with
Executive. Executive represents and admits that 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 Bank and/or the Company,
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 Bank and/or the Company from pursuing any other remedies
available to the Bank and/or the Company for such breach or threatened breach,
including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Bank and affiliates
thereof, as it may exist from time to time, is a valuable, special and unique
asset of the business of the Bank. 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 Bank or affiliates thereof to any person,
firm, corporation, or other entity for any reason or purpose whatsoever (except
for such disclosure as may be required to be provided to any federal banking
agency with jurisdiction over the Bank or Executive). 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 Bank, and Executive may
disclose any information regarding the Bank or the Company which is otherwise
publicly available. In the event of a breach or threatened breach by Executive
of the provisions of this Section, the Bank 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 Bank or
affiliates thereof, or from rendering any services to any person, firm,
corporation, other entity to whom
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such knowledge, in whole or in part, has been disclosed or is threatened to be
disclosed. Nothing herein will be construed as prohibiting the Bank from
pursuing any other remedies available to the Bank for such breach or threatened
breach, including the recovery of damages from Executive.
12. SOURCE OF PAYMENTS
(a) All payments provided in this Agreement shall be timely paid in cash
or check from the general funds of the Bank. The Company, however, guarantees
payment and provision of all amounts and benefits due hereunder to Executive
and, if such amounts and benefits due from the Bank are not timely paid or
provided by the Bank, such amounts and benefits shall be paid or provided by the
Company.
(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 an Employment Agreement with the Company, if any,
such compensation payments and benefits paid the Company will be subtracted from
any amounts due simultaneously to Executive under similar provisions of this
Agreement. Payments pursuant to this Agreement and a Company Employment
Agreement, if any, 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 on a quarterly basis.
13. NO EFFECT ON EMPLOYEE BENEFITS PLANS OR PROGRAMS
The termination of Executive's employment during the term of this
Agreement or thereafter, whether by the Company or by Executive, shall have no
effect on the vested rights of Executive under the Company's or the Bank'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
other employee benefit plans or programs, or compensation plans or programs in
which Executive was a participant.
14. REQUIRED REGULATORY PROVISIONS
(a) The Bank's board of directors may terminate Executive's employment
at any time. Executive shall not have the right to receive compensation or other
benefits for any period after Termination for Cause as defined in Section 8
hereinabove.
(b) If Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) (12 USC ss.1818(e)(3)) or 8(g)(1) (12 USC ss.1818(g)(1)) of the
Federal Deposit Insurance Act ("FDIA"), as amended by the Financial Institutions
Reform, Recovery and Enforcement Act of 1989, the Bank's obligations under this
Agreement shall be suspended as of the date of service, unless stayed by
appropriate proceedings. If the charges in the notice are dismissed, the Bank
may in its discretion (i) pay Executive all or part of the compensation withheld
while its contract obligations were suspended and (ii) reinstate (in whole or in
part) any of its obligations which were suspended.
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(c) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) (12 USC ss.1818(e)(4)) or 8(g)(1) (12 USC ss.1818(g)(1)) of
FDIA, all obligations of the Bank under this Agreement shall terminate as of the
effective date of the order, but vested rights of the contracting parties shall
not be affected.
(d) If the Bank is in default as defined in Section 3(x)(1) (12 USC
ss.1813(x)(1)) of FDIA, all obligations under this Agreement shall terminate as
of the date of default, but this paragraph shall not affect any vested rights of
the contracting parties.
(e) All obligations under this Agreement shall be terminated, except to
the extent determined that continuation of this Agreement is necessary for the
continued operation of the Bank, (i) by the Director of OTS or his or her
designee, at the time the FDIC enters into an agreement to provide assistance to
or on behalf of the Bank under the authority contained in Section 13(c) (12 USC
ss.1823(c)) of FDIA; or (ii) by the Director of OTS or his or her designee at
the time the Director of OTS or his or her designee approves a supervisory
merger to resolve problems related to operations of the Bank or when the Bank is
determined by the Director of OTS or his or her designee to be in an unsafe or
unsound condition. Any rights of the parties that have already vested, however,
shall not be affected by such action.
(f) Notwithstanding anything herein contained to the contrary, any
payments to Executive by the Company, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with Section
18(k) of FDIA, 12 U.S.C. Section 1828(k), and the regulations promulgated
thereunder in 12 C.F.R. Part 359.
15. 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 and the Bank and their respective successors and assigns.
16. ENTIRE AGREEMENT; MODIFICATION AND WAIVER
(a) This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and supercedes in its entirety any and
all prior agreements, understandings or representations relating to the subject
matter hereof, except that the parties acknowledge that this Agreement shall not
impact any of the rights and obligations of the parties under any agreement or
plan entered into with or by the Company pursuant to which the Executive may
receive compensation or benefits except as set forth in Section 12(b) hereof. No
modifications of this Agreement shall be valid unless made in writing and signed
by the parties hereto.
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(b) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(c) 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.
17. 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.
18. 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.
19. GOVERNING LAW
This Agreement shall be governed by the laws of the State of New York
but only to the extent not superseded by federal law.
20. 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 arbitrators, one of whom shall be selected by the Bank, one of whom
shall be selected by Executive and the third of whom shall be selected by the
other two arbitrators. The panel shall sit in a location within fifty (50) miles
from the location of the Bank, in accordance with the rules of the Judicial
Mediation and Arbitration Systems (JAMS) then in effect. Judgment may be entered
on the arbitrators 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.
21. 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 Bank, provided that the dispute or interpretation has been
settled by Executive and the Bank or resolved in Executive's favor.
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22. INDEMNIFICATION
During the term of this Agreement and for a period of six (6) years
thereafter, the Bank 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 federal 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 Bank (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 (such settlements must be approved by the Board of Directors of the
Bank). If such action, suit or proceeding is brought against Executive in his
capacity as an officer or director of the Bank, however, such indemnification
shall not extend to matters as to which Executive is finally adjudged to be
liable for willful misconduct in the performance of his duties.
23. SUCCESSOR TO THE ASSOCIATION
The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or the Company, expressly
and unconditionally to assume and agree to perform the Bank's obligations under
this Agreement, in the same manner and to the same extent that the Bank would be
required to perform if no such succession or assignment had taken place.
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SIGNATURES
IN WITNESS WHEREOF, the Bank and the Company have caused this Agreement
to be executed and their seals to be affixed hereunto by their duly authorized
officers, and Executive has signed this Agreement, on the day and date first
above written.
ATTEST: BROOKLYN FEDERAL SAVINGS BANK
____________________ By:_____________________________________
Secretary Name
Title
ATTEST: BROOKLYN FEDERAL BANCORP, INC.
____________________ By:_____________________________________
Secretary Name
Title
WITNESS: EXECUTIVE
____________________ By:_____________________________________
Secretary Name
Title
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