EMPLOYMENT AGREEMENT
This Agreement is made effective as of ______________ __, 2003 (the
"Effective Date"), by and between Flatbush Federal Savings & Loan Association, a
federally chartered savings association with its principal office in Brooklyn,
New York (the "Association"), and Xxxx X. Xxxxxxx (the "Executive"). References
to the "Company" mean Flatbush Federal Bancorp, Inc., the wholly owned
subsidiary of the Company. The Company shall be a signatory to this Agreement
for the sole purpose of guaranteeing the Association's performance hereunder.
WHEREAS, the Executive has served as an officer of the Association since
1994 and shall serve as an officer of the Company; and
WHEREAS, the Association wishes to assure itself of the services of
Executive as an officer of the Association for the period provided in this
Agreement; and
WHEREAS, in order to induce the Executive to remain in the employ of the
Association and to provide further incentive to achieve the financial and
performance objectives of the Association and the Company, the parties desire to
specify the severance benefits which shall be due the Executive in the event
that his employment with the Association is terminated under specified
circumstances.
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
Controller of the Association (the "Executive Position"). During said period,
Executive also agrees to serve, if elected, as an officer and director of any
subsidiary or affiliate of the Association. Failure to reelect Executive to the
Executive Position without the consent of the Executive during the term of this
Agreement (except for any termination for Cause, as defined herein) shall
constitute a breach of this Agreement.
2. TERM 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 a period of thirty-six
(36) full calendar months thereafter. Commencing on the first anniversary date
of this Agreement, and continuing at each anniversary date thereafter, the
Agreement shall renew for an additional year such that the remaining term shall
be thirty-six (36) full calendar months; provided, however, if written notice of
nonrenewal is provided to Executive at least ten (10) days and not more than
thirty (30) days prior to any anniversary date, the employment of Executive
hereunder shall cease at the end of thirty-six (36) months following such
anniversary date.
(b) During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence approved by the board of directors of the Association
("Board"), Executive shall devote substantially all
his business time, attention, skill, and efforts to the faithful performance of
his duties hereunder including activities and services related to the
organization, operation and management of the Association; provided, however,
that, with the approval of the Board of the Association, as evidenced by a
resolution of such Board, from time to time, Executive may serve, or continue to
serve, on the boards of directors of, and hold any other offices or positions
in, business companies or business organizations, which, in such Board's
judgment, will not present any conflict of interest with the Association, or
materially affect the performance of Executive's duties pursuant to this
Agreement (it being understood that membership in and service on boards or
committees of social, religious, charitable or similar organizations does not
require Board approval pursuant to this Section 2(b)). For purposes of this
Section 2(b), Board approval shall be deemed provided as to service with any
such business companies or organizations that Executive was serving as of the
date of this Agreement as set forth in Exhibit A hereto.
3. COMPENSATION, BENEFITS 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
Association shall pay Executive as compensation a salary of not less than
$80,000 per year ("Base Salary"). Such Base Salary shall be payable biweekly, or
with such other frequency as officers and employees are generally paid. During
the period of this Agreement, Executive's Base Salary shall be reviewed at least
annually. Such review may be conducted by a Committee designated by the Board,
and the Board may increase, but not decrease (except a decrease that is
generally applicable to all employees), 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 Association shall
provide Executive at no cost to Executive with all such other benefits as are
provided uniformly to permanent full-time employees of the Association. Base
Salary shall include any amounts of compensation deferred by Executive under
qualified and nonqualified plans maintained by the Association.
(b) The Association 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 Association 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, except as to any changes that are applicable to all
participating employees or as reasonably or customarily available. Without
limiting the generality of the foregoing provisions of this Subsection (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 insurance plans, medical coverage or any other employee
benefit plan or arrangement made available by the Association or the Company 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 Association or the
Company in which Executive is eligible to participate. Nothing paid to the
Executive under any such plan or arrangement will be deemed to be in lieu of
other compensation to which the Executive is entitled under this Agreement.
2
(c) In addition to the Base Salary provided for by paragraph (a) of this
Section 3, the Association or the Company shall pay or reimburse Executive for
all reasonable travel and other reasonable expenses incurred by Executive
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. The Association shall reimburse the Executive for his ordinary and
necessary business expenses, including, without limitation, fees for memberships
in such clubs and organizations as the Executive and the Board shall mutually
agree are necessary and appropriate for business purposes, and travel and
entertainment expenses, incurred in connection with the performance of his
duties under this Agreement, upon presentation to the Association of an itemized
account of such expenses in such form as the Association may reasonably require.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this section shall apply. 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 Association of Executive's full-time employment hereunder for
any reason other than a termination following a Change in Control, as defined in
Section 5(a) hereof, or a termination for Cause, as defined in Section 8 hereof,
or a termination upon Retirement as defined in Section 7 hereof, or a
termination for disability as set forth in Section 6 hereof; and (ii)
Executive's resignation from the Association's employ, upon any of the
following: (A) failure to elect or reelect or to appoint or reappoint Executive
to the Executive Position, unless consented to by the Executive, (B) a 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 Sections 1 and 2
above, to which Executive has not agreed in writing (and any such material
change shall be deemed a continuing breach of this Agreement), (C) a relocation
of Executive's principal place of employment to a location that is more than 25
miles from the location of the Association's principal executive offices as of
the date of this Agreement, or a material reduction in the benefits and
perquisites, including Base Salary, to the Executive from those being provided
as of the effective date of this Agreement (except for any reduction that is
part of an employee-wide reduction in pay or benefits), (D) a liquidation or
dissolution of the Association, or (E) material breach of this Agreement by the
Association. Upon the occurrence of any event described in clauses (ii) (A),
(B), (C), (D) or (E) above, Executive shall have the right to elect to terminate
his employment under this Agreement by resignation upon not less than thirty
(30) days prior written notice given within a reasonable period of time (not to
exceed, except in case of a continuing breach, four calendar months) after the
event giving rise to said right to elect, which termination by Executive shall
be an Event of Termination. No payments or benefits shall be due to Executive
under this Agreement upon the termination of Executive's employment except as
provided in Section 4 or 5 hereof.
(b) Upon the occurrence of an Event of Termination, the Association 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 cash amount equal to three (3) times the sum of the highest
annual rate of Base Salary paid to Executive at any time under this Agreement
and the highest rate of cash bonus awarded to Executive during the prior three
years. At the election of the Executive, which election is to be made annually
by January 31 (or as to
3
the first year, within thirty days of the date of the Agreement) of each year
and is irrevocable for the year in which made (and once payments commence), such
payments shall be made in a lump sum or paid quarterly during the remaining term
of the agreement following the Executive's termination. In the event that no
election is made, payment to the Executive will be made in a lump sum without
reduction for present value. Such payments shall not be reduced in the event the
Executive obtains other employment following termination of employment.
(c) Upon the occurrence of an Event of Termination, the Association will
provide at the Association's expense, life, medical and dental coverage
substantially comparable, as reasonably or customarily available, to the
coverage maintained by the Association for Executive prior to his termination,
except to the extent such coverage may be changed in its application to all
Association employees. Such coverage shall continue for the remaining unexpired
term of the Agreement. In the alternative, the Company shall pay to the
Executive a cash amount equal to the Executive's cost of obtaining such benefits
on his own, adjusted for any federal or state income taxes the Executive has to
pay on the cash amount.
5. CHANGE IN CONTROL.
(a) "Change in Control" shall mean a change in control of a nature that:
(i) would be required to be reported in response to Item 1(a) 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 Association or the Company within the
meaning of the Home Owners' Loan Act, as amended ("HOLA"), and applicable rules
and regulations promulgated thereunder, 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 Association'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 Association or the Company or similar transaction in which the
Association or Company is not the surviving institution occurs; or (d) a proxy
statement soliciting proxies from stockholders of the Company, by someone other
than the current management of the Company, 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 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.
4
Notwithstanding anything in this sub-section 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) If any of the events described in Section 5(a) hereof constituting a
Change in Control shall have occurred or the Board has determined that a Change
in Control has occurred, Executive shall be entitled to the benefits provided in
paragraphs (c) and (d) of this Section 5 upon his subsequent termination of
employment at any time during the term of this Agreement (regardless of whether
such termination results from his resignation or his dismissal), unless such
termination is (A) because of his death or Retirement, or, (B) for Disability.
Upon a Change in Control, and for a period of one year thereafter, Executive
shall have the right to elect to terminate his employment with the Association,
for any reason, and receive the benefits provided for in this Section 5.
(c) Upon the occurrence of a Change in Control followed by the termination
of Executive's employment by the Association (including a termination referred
to in the last sentence of Section 5(b) above), the Executive, or, in the event
of his subsequent death (subsequent to such termination), his beneficiary or
beneficiaries, or his estate, as the case may be, shall receive as severance pay
or liquidated damages, or both, an amount equal to three times the sum of the
highest annual rate of Base Salary and the highest rate of cash bonus awarded to
Executive during the prior three years.
(d) Upon the occurrence of a Change in Control followed by the termination
of Executive's employment, the Association will provide at the Association's
expense, life, medical and dental insurance coverage substantially comparable,
as reasonably or customarily available, to the coverage maintained by the
Association for Executive prior to his severance. Such coverage shall cease
thirty-six (36) months from the date of Executive's termination of employment.
In the alternative, the Association shall pay to the Executive a cash amount
equal to the Executive's cost of obtaining such benefits on his own, adjusted
for any federal or state income taxes the Executive has to pay on the cash
amount.
(e) Notwithstanding the preceding paragraphs of this Section, in the event
that:
(i) 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; and
(ii) is such Termination Benefits were 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, then the Termination
Benefits to be paid to Executive shall be so reduced so as to be a
Non-Triggering Amount.
6. TERMINATION FOR DISABILITY OR DEATH.
(a) Termination of the Executive's employment based on "Disability" shall
mean termination because of any physical or mental impairment which qualifies
the Executive for
5
disability benefits under the applicable long-term disability plan maintained by
the Employers or any subsidiary or, if no such plan applies, which would qualify
the Executive for disability benefits under the Federal Social Security System.
The provisions of paragraph 6(b) and (c) shall apply upon the termination
Executive's employment for ^ Disability.
(b) The Association will pay Executive, as disability pay, a bi-weekly
payment equal to the seventy-five percent (75%) of the Executive's bi-weekly
rate of Base Salary on the effective date of such termination. These disability
payments shall commence on the effective date of Executive's termination and
will end on the earlier (i) the date Executive returns to the full-time
employment of the Association in the same capacity as he was employed prior to
his termination for Disability and pursuant to an employment agreement between
Executive and the Association; (ii) Executive's full-time employment by another
employer; (iii) Executive attains the age of 65; or (iv) Executive's death. The
disability pay shall be reduced by the amount, if any, paid to the Executive
under any plan of the Association or the Company providing disability benefits
to the Executive.
(c) The Association will cause to be continued life, medical and dental
coverage substantially comparable, as reasonable or customarily available, to
the coverage maintained by the Association for Executive prior to his
termination for Disability, except to the extent such coverage may be changed in
its application to all Association employees or not available on an individual
basis to an employee terminated for Disability. This coverage shall cease upon
the earlier of (i) the date Executive returns to the full-time employment of the
Association in the same capacity as he was employed prior to his termination for
Disability and pursuant to an employment agreement between Executive and the
Association; (ii) Executive's full-time employment by another employer; (iii)
Executive attaining the age of 65; or (iv) Executive's death.
(d) 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 of Executive's death for a period of one (1)
year from the date of the Executive's death, and the Association will continue
to provide medical, dental and other insurance benefits normally provided for an
Executive's family for one (1) year after the Executive's death.
7. TERMINATION UPON RETIREMENT.
Termination of the Executive's employment based on "Retirement" shall mean
termination of Executive's employment at age 65 or in accordance with any
retirement policy established by the Board with Executive's consent with respect
to him. Upon termination of Executive based on Retirement, no amounts or
benefits shall be due Executive under this Agreement, and the Executive shall be
entitled to all benefits under any retirement plan of the Association and other
plans to which Executive is a party.
8. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination because of the
Executive's personal dishonesty, incompetence, willful misconduct, any breach of
fiduciary duty involving
6
personal profit, intentional failure to perform stated duties, willful violation
of any law, rule, or regulation (other than traffic violations or similar
offenses) or final cease-and-desist order, or material breach of any provision
of this Agreement. Executive's employment shall not be terminated in accordance
with this paragraph for any act or action or failure to act which is undertaken
or omitted in accordance with a resolution of the Board or upon advice of the
Association's counsel. 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 a majority 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 Termination for Cause and specifying the particulars thereof
in detail. The Executive shall not have the right to receive compensation or
other benefits for any period after Termination for Cause. Any non-vested stock
options granted to Executive under any stock option plan of the Association, 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 (unless it is determined in arbitration
that grounds for Termination for Cause did not exist, in which event all terms
of the options as of the date of termination shall apply, and any time periods
for exercising such options shall commence from the date of resolution in
arbitration).
9. NOTICE.
(a) Any purported termination by the Association for Cause shall be
communicated by Notice of Termination to the Executive. 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. If, within thirty (30) days after any Notice of Termination for Cause
is given, the Executive notifies the Association that a dispute exists
concerning the termination, the parties shall promptly proceed to arbitration.
Notwithstanding the pendency of any such dispute, the Association may
discontinue to pay Executive compensation until the dispute is finally resolved
in accordance with this Agreement. If it is determined that Executive is
entitled to compensation and benefits under Section 4 or 5 of this Agreement,
the payment of such compensation and benefits by the Association shall commence
immediately following the date of resolution by arbitration, with interest due
Executive on the cash amount that would have been paid pending arbitration (at
the prime rate as published in The Wall Street Journal from time to time).
(b) Any other purported termination by the Association or by Executive
shall be communicated by a Notice of Termination to the other party. 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 detail the facts and circumstances claimed to
provide a basis for termination of employment under the provision so indicated.
"Date of Termination" shall mean the date of the Notice of Termination. 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, the parties shall promptly proceed to
arbitration as provided in Section 19 of this Agreement. Notwithstanding the
7
pendency of any such dispute, the Association shall continue to pay the
Executive his Base Salary, and other compensation and benefits in effect when
the notice giving rise to the dispute was given (except as to termination of
Executive for Cause). In the event of the voluntary termination by the Executive
of his employment, which is disputed by the Association, and if it is determined
in arbitration that Executive is not entitled to termination benefits pursuant
to this Agreement, he shall return all cash payments made to him pending
resolution by arbitration, with interest thereon at the prime rate as published
in The Wall Street Journal from time to time if it is determined in
arbitration that Executive's voluntary termination of employment was not taken
in good faith and not in the reasonable belief that grounds existed for his
voluntary termination.
10. NON-COMPETITION AND POST-TERMINATION OBLIGATIONS.
(a) All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with paragraph (b), (c) and (d) of this
Section 10.
(b) Executive shall, upon reasonable notice, furnish such information and
assistance to the Association as may reasonably be required by the Association
in connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party.
(c) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Employers and
affiliates thereof, as it may exist from time to time, is a valuable, special
and unique asset of the business of the Employers. 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 Employers 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 the
Office of Thrift Supervision ("OTS"), the Federal Deposit Insurance Corporation
("FDIC"), or other bank regulatory agency with jurisdiction over the Association
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 Association, and Executive may disclose any information
regarding the Association which is otherwise publicly available or which
Executive is otherwise legally required to disclose. In the event of a breach or
threatened breach by the Executive of the provisions of this Section 10, the
Employers 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 Employers or affiliates thereof, or from
rendering any services to any person, firm, corporation, 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 Employers from
pursuing any other remedies available to the Employers for such breach or
threatened breach, including the recovery of damages from Executive.
(d) Upon any termination of Executive's employment hereunder pursuant to
Section 4 of this Agreement, Executive agrees not to compete with the Employers
for a period of one (1) year following such termination in any city, town or
county in which the Association 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. Executive agrees that during such period and within said cities,
towns and counties,
8
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 Association. The parties
hereto, recognizing that irreparable injury will result to the Association, its
business and property in the event of Executive's breach of this Section 10(d)
agree that in the event of any such breach by Executive, the Association 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 Association, 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
Association from pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of damages from Executive.
11. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Association. 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 Association are not
timely paid or provided by the Association, such amounts and benefits shall be
paid or provided by the Company.
12. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Association or any
predecessor of the Association and Executive, except that this Agreement shall
not affect or operate to reduce any benefit or compensation inuring to the
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.
13. NO ATTACHMENT; BINDING ON SUCCESSORS.
(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 Association and their respective successors and assigns.
14. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
9
(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.
15. REQUIRED PROVISIONS.
(a) The Association may terminate the Executive's employment at any time,
but any termination by the Association's Board, other than Termination for
Cause, as defined in Section 8 hereof shall not prejudice the Executive's right
to compensation or other benefits under this Agreement. The Executive shall have
no right to receive compensation or other benefits for any period after
Termination for Cause.
(b) If the Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the Association'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, the Association's
obligations under this contract shall be suspended as of the date of service,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Association may in its discretion (i) pay the 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.
(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Association'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 the Federal Deposit Insurance Act, all obligations of the Association under
this contract shall terminate as of the effective date of the order, but vested
rights of the contracting parties shall not be affected.
(d) If the Association is in default as defined in Section 3(x)(1) (12 USC
ss.1813(x)(1)) of the Federal Deposit Insurance Act, all obligations of the
Association under this contract 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 contract shall be terminated, except to the
extent determined that continuation of the contract is necessary for the
continued operation of the Association, (i) by the Director of the OTS or his or
her designee, at the time the FDIC enters into an agreement to provide
assistance to or on behalf of the Association under the authority contained in
Section 13(c) (12 USC ss.1823(c)) of the Federal Deposit Insurance Act; or (ii)
by the Director or his or her designee at the time the Director or his or her
designee approves a supervisory merger to resolve problems related to operation
of the Association or when the Association is determined by the Director 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 the Executive by the Company, whether pursuant to this Agreement or
otherwise, are subject to and
10
conditioned upon their compliance with Section 18(k) of the Federal Deposit
Insurance Act, 12 U.S.C. Section 1828(k), and the regulations promulgated
thereunder in 12 C.F.R. Part 359.
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.
18. 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.
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 arbitrators sitting in a location selected by the employee within
twenty-five miles of Brooklyn, New York, 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.
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 Association, provided that the dispute or interpretation
has been settled by Executive and the Association or resolved in the Executive's
favor.
21. INDEMNIFICATION.
(a) The Association 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
Delaware 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
Association or the Company (whether or not he continues to be a director or
officer at the time of incurring such
11
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 or the
board of directors of the Company, as appropriate), provided, however, neither
the Association nor Company shall be required to indemnify or reimburse the
Executive for legal expenses or liabilities incurred in connection with an
action, suit or proceeding arising from any illegal or fraudulent act committed
by the Executive. Any such indemnification shall be made consistent with Section
545.121 of the OTS Regulations.
(b) Notwithstanding the above, no indemnification shall be made unless the
Association gives the OTS at least 60 days notice of its intention to make such
indemnification. Such notice shall state the facts on which the action arose,
the terms of any settlement, and any disposition of the action by a court. Such
notice, a copy thereof, and a certified copy of the resolution containing the
required determination by the Board shall be sent to the Regional Director of
the OTS. The notice period shall run from the date of such receipt.. No such
indemnification shall be made if the OTS advises the Association in writing
within such notice period of its objection thereto.
22. NOTICE.
For the purposes of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed to the respective addresses set
forth below:
To the Company: Flatbush Federal Bancorp, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
To the Association: Flatbush Federal Savings & Loan Association
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
To the Executive:
----------------------------------------
----------------------------------------
----------------------------------------
12
SIGNATURES
IN WITNESS WHEREOF, the Company and the Association have caused this
Agreement to be executed by their duly authorized officers, and Executive has
signed this Agreement, on the day and date first above written. The Company has
become a party to this Agreement for the sole purpose of binding itself to the
duties and obligations set forth in Sections 11 and 21 hereof.
ATTEST: FLATBUSH FEDERAL BANCORP, INC.
By:
-------------------------- -----------------------------------
Secretary
ATTEST: FLATBUSH FEDERAL SAVINGS & LOAN ASSOCIATION
By:
-------------------------- -----------------------------------
Secretary
WITNESS: EXECUTIVE:
-------------------------- -----------------------------------
Secretary
13
