Exhibit 10.2
SALARY CONTINUATION AGREEMENT
THIS AGREEMENT is made as of XXXXXXX between THE ROCHESTER COMMUNITY
SAVINGS BANK ("RCSB") and XXXXXXXXXX ("Executive").
BACKGROUND. Executive Is employed by the Bank in a senior executive
capacity and has acquired knowledge and expertise of considerable value to the
Bank. In recognition of Executive's value to the Bank and of Executive's past
services, and as an inducement to secure his future services and his agreement
to the covenants set forth herein, the Bank desires to provide Executive with
certain benefits.
NOW, THEREFORE, to induce Executive to remain in the employ of the Bank,
and for other good and valuable consideration, the Bank hereby agrees with
Executive as follows:
1 DEFINITIONS.
For the purposes of this Agreement, unless the context otherwise
requires, the following terms, when capitalized, shall have the meanings set
forth below:
.1 "Bank" means The Rochester Community Savings Bank and its
successors.
.2 "Cause" means willful misconduct or gross negligence by
Executive in connection with the performance of his duties to the Bank or any
of the RCSB Entities; misappropriation of, or intentional material damage to,
the property or business of the Bank or any of the RCSB Entities by Executive;
or commission of a felony by Executive.
.3 "Change in Control Plan" means the Rochester Community Savings
Bank Senior Executive Severance Plan, as amended to the date of this
Agreement, a copy of which is attached to this Agreement as Exhibit A.
.4 "Disability" means total disability, as that term is defined
in the long-term disability plan in effect for key executives of the Bank at
the time the disability arises, or if no such definition is in effect, "total
disability" shall be defined in accordance with the Social Security Act,
provided that the period of such total disability shall exceed six (6)
consecutive months.
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.5 "Final Monthly Salary" means an amount equal to the
Executive's highest monthly base salary paid or payable by the Bank during the
twelve months immediately preceding any Termination of Executive's employment.
.6 "RCSB Entity" means any corporation, a majority of whose shares
entitled to vote for directors are owned directly or indirectly by RCSB
Financial, Inc. ("RCSB Financial"), the Bank or any of their subsidiaries or
any partnership or other entity, a majority of whose voting interest is owned
directly or indirectly by RCSB Financial, the Bank or any of their
subsidiaries.
.7 "Severance Expiration Date" means the earliest of the
following to occur: (a) the expiration of [TWELVE (12) OR TWENTY-FOUR (24)]
full calendar months after the month in which Termination of Executive's
employment occurs; (b) the date of Executive's death; and (c) Executive's
attainment of age 65.
.8 "Termination" means (a) termination of the employment of
Executive with the Bank and the RCSB Entities for any reason other than death,
Disability or Cause, or (b) resignation of Executive within twelve months
after the occurrence of (i) a significant reduction in the nature or the scope
of the Executive's authority as an executive of the Bank or any of the RCSB
Entities, or (ii) a reduction in Executive's base salary (not taking into
account any increases in payroll deductions for medical or other benefits or
the effect or tax increases) payable by the Bank and the RCSB Entities, unless
any such reduction in base salary shall have been mutually agreed to in
advance by the Bank and Executive.
2 RIGHTS UNDER CHANGE IN CONTROL PLAN
.1 Group A Executive. It is hereby agreed that Executive will,
so long as he remains employed by the Bank, remain a participant in, and be
designated a "Group A Executive" under, the Change in Control Plan.
.2 Effect of Amendments. No amendment, abandonment or
termination of the Change in Control Plan after the date hereof shall be
effective to impair or abridge the rights of Executive thereunder, provided,
however, that any amendment to the Change in Control Plan that is required by
law and does not, taken as a whole, decrease the benefits to Executive under
the Change in Control Plan, shall be effective with respect to the Executive
and his rights under the Change in Control Plan.
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3 TERMINATION BENEFITS
Subject to Executive's compliance with the terms of Sections 4, 5 and 6
hereof, in the event of a Termination of Executive's employment (other than a
Termination entitling Executive to severance payments and benefits under the
Change in Control Plan), Executive shall be entitled to receive the severance
payments and benefits described in the following Sections 3.1 through 3.5:
.1 Monthly Payments. The Bank will make monthly payments to
Executive of Executive's Final Monthly Salary, in accordance with the Bank's
normal payroll practices, commencing with the month after Termination occurs
and ending with the month in which the Severance Expiration Date occurs.
.2 Supplemental Executive Retirement Plan. If, as of the date of
this Agreement, Executive is a participant in a supplemental executive
retirement plan (a "SERP") maintained by the Bank or any RCSB Entity, or if
the Executive shall become covered by a SERP sponsored by the Bank or any RCSB
Entity after the date of this Agreement, Executive shall continue to be an
active participant in the SERP until his Severance Expiration Date and
contributions to, and benefit accruals under, any such SERP, shall be
determined in accordance with the terms of the SERP as if the monthly payments
under Section 3.1 hereof were "compensation" for services provided by
Executive as an active employee of the Bank. Notwithstanding the foregoing,
to the extent that Executive commences receiving benefits under any such SERP,
then from the date such benefit payments commence from the SERP, the monthly
payments under Section 3.1 shall cease to be taken into account for purposes
of such SERP.
.3 Split Dollar Life Insurance. Executive shall continue as an
active participant in the Bank's split dollar life insurance program until the
Severance Expiration Date and the Bank will continue to pay its share of the
premiums payable thereunder until such date. After the Severance Expiration
Date, the Bank shall transfer and assign to Executive the Bank's rights under,
and entire interest in, the split dollar life insurance policy covering
Executive upon Executive's payment to the Bank of the lesser of (a) the
aggregate amount of premiums previously paid by the Bank under such insurance
policy, and (b) the cash surrender value of such insurance policy.
.4 Continuation of Other Benefits. The Executive shall receive,
at a cost to the Executive not in excess of costs imposed on similarly
situated executives who are actively employed by the Bank, all other welfare
and fringe benefits he would have been entitled to receive had he continued in
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the employ of the Bank until his Severance Expiration Date, including, without
limitation, life, medical and dental insurance, automobile, and club dues
associated with club memberships provided to Executive prior to the
Termination. Notwithstanding the foregoing, after Executive's Termination,
Executive shall not be entitled to participate in any tax-qualified plans
(including, but not limited to, the RCSB Retirement Savings Plan and the RCSB
Employee Investment and Stock Ownership Plan), any stock-based plans, or any
short-term disability, long-term disability, or accidental death or
dismemberment plans or policies maintained by any of the RCSB Entities, except
to the extent required by applicable law.
.5 Benefits Superseded by Change in Control Plan. In the event
of any Termination that entitles Executive to severance payments and benefits
under the Change in Control Plan, the Executive shall receive the payments and
benefits provided for under the Change in Control Plan. In such event, this
Agreement and the obligations of the Bank and Executive hereunder shall
terminate.
4 CERTAIN RESTRICTIVE COVENANTS
Executive agrees that for a period of one-year after Executive's
Termination, Executive will not (and he will not cause, or permit if it is
within his power to prevent, any other person to) employ or offer employment
to, or conduct or participate in discussions concerning the employment of, any
officer or employee of any RCSB Entity without the prior written consent of
the Bank.
5 CONFIDENTIALITY
.1 Confidential Information. Executive acknowledges that he has
no right to use or disclose to any person, firm or corporation information
concerning any customer list, trade or business secrets or confidential,
commercial or financial information of the RCSB Entities that he knew or
should have known was intended by the RCSB Entities to be confidential and
that he did not have reason to believe had been made public other than through
his breach of this Section 5 (collectively, "Confidential Information").
Accordingly, Executive covenants and agrees that he shall not use, and he will
not permit if it is within his reasonable power to prevent the use of, any
Confidential Information, and shall not divulge any Confidential Information
to any person, firm or corporation whatsoever, except as may be required by
applicable law. The Bank agrees that Executive may obtain future employment
in the banking or financial services industry and, in that capacity, he may
use general information and knowledge regarding business and banking practices
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and information other than Confidential Information, some or all of which may
have been acquired or developed while Executive was employed by the Bank, and
such use will not be deemed a violation of this Section 5.
.2 No Removal of Confidential Information. Executive agrees that
on and after his Termination, he will not remove from the RCSB Entities,
reproduce or make abstracts of any Confidential Information belonging to or
within the custody or possession of any of the RCSB Entities, and that he will
return to RCSB, or destroy and certify the destruction of, any Confidential
Information in his possession or under his control.
.3 Required Notices. In the event that Executive believes that
any Confidential Information is excepted from his obligations under this
Section 5, or he is requested or becomes legally compelled (by oral questions,
interrogatories, requests for information or documents, subpoena, criminal or
civil investigative demand or similar process) to disclose any Confidential
Information, he will use his best efforts to provide the RCSB Entities with
prompt written notice so that they may seek (with Executive's cooperation, if
so requested by the Bank) a protective order or other appropriate remedy
and/or waive compliance with the provisions of this Agreement. The RCSB
Entities will advise Executive promptly of the action they intend to take. In
the event that such protective order or other remedy is not promptly obtained,
or that the Bank waives compliance with the provisions of this Agreement,
Executive will furnish or use only that portion of the Confidential
Information which is legally required or otherwise permitted. In the absence
of instruction from any appropriate governmental agency (or the staff thereof)
or court of competent jurisdiction, any decision as to what portion of the
Confidential Information is legally required to be furnished will be made by
Executive in consultation with the Bank.
6 SPECIFIC PERFORMANCE
Executive acknowledges that any breach of the covenants set forth in
Sections 4 and 5 hereof will cause irreparable damage that would be incapable
of precise measurement and for which no adequate remedy would exist at law and
agrees that injunctive relief, in addition to all other remedies, shall be
available therefor. It is the intent and understanding of the parties hereto
that if, in any action before any court or agency legally empowered to enforce
this Agreement, any term, restriction, covenant, or promise is found to be
unreasonable and for that reason unenforceable, then such term, restriction,
covenant, or promise shall be deemed modified to the extent necessary to make
it enforceable by such court or agency, and, if it cannot be so modified, that
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it shall be deemed amended to delete therefrom such provision or portion
adjudicated to be invalid or unenforceable, such modification or amendment in
any event to apply only with respect to the operation of this Agreement in the
particular jurisdiction in which such adjudication is made.
7 MISCELLANEOUS
.1 Rights to Contractual Benefits. The rights of Executive to
benefits under this Agreement shall be solely those of an unsecured creditor
of the Bank.
.2 Successors. This Agreement shall be binding upon and inure to
the benefit of Executive, his beneficiaries and estate, and the Bank and any
successor to the Bank, but neither this Agreement nor any rights arising
hereunder may be assigned or pledged by Executive except by will or by the
laws of descent and distribution.
.3 No Right to Continued Employment. Nothing in this Agreement
shall be deemed to give Executive the right to be retained in the employ of
the Bank or any RCSB Entity, or to interfere with the right of the Bank or any
RCSB Entity to discharge him at any time and for any lawful reason, with or
without notice, subject in all cases to the terms of this Agreement.
.4 Transfer to Subsidiary. In the event that Executive is
transferred to an RCSB Entity other than the Bank, the Bank agrees that this
Agreement shall be amended in such manner as may be necessary or appropriate
to ensure that this Agreement will continue to provide Executive with the
benefits and protections intended to be provided hereby.
.5 Effect of Bank's Merger or Transfer of Assets. Except as set
forth in Section 3.6, this Agreement shall not be terminated or affected in
any way by any: (a) merger or consolidation involving RCSB Financial or the
Bank; or (b) transfer of all or substantially all of the assets of RCSB
Financial or the Bank. In the event of any such merger, consolidation the
Bank or transfer of assets of the Bank, the surviving or resulting entity or
the transferee the Bank's assets shall be bound by the provisions of this
Agreement. The Bank shall take all actions necessary to ensure that such
entity or transferee is bound by the provisions of this Agreement.
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.6 Severability. Any provision in this Agreement that is
prohibited or unenforceable shall be ineffective only to the extent of such
prohibition or unenforceability without invalidating or affecting the
remaining provisions hereof.
.7 Entire Agreement; Amendment. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all previous proposals, both oral and written, negotiations,
representations, commitments, writings and all other communications between
the parties. It may not be released, discharged, or modified except by an
instrument in writing signed by both parties.
.8 Withholding Taxes. Any payments or benefits provided to
Executive hereunder shall be subject to Executive's satisfaction of any
applicable withholding required under federal, state or local law and any
additional withholding to which Executive has agreed.
.9 Headings. The headings and captions herein are provided for
reference and convenience only, shall not be considered part of the Agreement,
and shall not be employed in the construction of the Agreement.
.10 Governing Law. This Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the State of New
York applicable to contracts made and to be performed therein.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above set forth.
__________________________
XXXXXXXXXXXX
THE ROCHESTER COMMUNITY SAVINGS BANK
By __________________________
Xxxxxxx X. Xxxxx
Title Chairman of the Board of Directors,
President and Chief
Executive Officer
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