Exhibit 10.5
CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT ("Agreement") is made and entered into as
of this 30th day of June, 1998, by and between Yonkers Financial Corporation
(the "Holding Company"), and Xxxxxx X. Xxxxxxx (the "Employee").
WHEREAS, the Employee is currently serving as Vice President, Treasurer
and Chief Financial Officer of the Holding Company and Vice President, Treasurer
and Chief Financial Officer of the Holding Company's wholly-owned subsidiary,
The Yonkers Savings and Loan Association, FA (the "Association"); and
WHEREAS, the board of directors of the Holding Company (the "Board of
Directors") recognizes that, as is the case with publicly held corporations
generally, the possibility of a change in control of the Holding Company and/or
the Association may exist and that such possibility, and the uncertainty and
questions which it may raise among management, may result in the departure or
distraction of key management personnel to the detriment of the Association, the
Holding Company and their respective stockholders; and
WHEREAS, the Employee and the Association had entered a Change in Control
Severance Agreement dated March 25, 1996 (the "Prior Agreement"); and
WHEREAS, the Employee and the Association have agreed to terminate the
Prior Agreement, with no obligation to any party thereunder, effective upon the
entering into of this Agreement; and
WHEREAS, the Board of Directors believes it is in the best interests of
the Holding Company to enter into this Agreement with the Employee in order to
assure continuity of management of the Holding Company and the Association and
to reinforce and encourage the continued attention and dedication of the
Employee to the Employee's assigned duties without distraction in the face of
potentially disruptive circumstances arising from the possibility of a change in
control of the Holding Company or the Association, although no such change is
now contemplated; and
WHEREAS, the Board of Directors has approved and authorized the execution
of this Agreement with the Employee to take effect as stated in Section 2
hereof;
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein, it is AGREED as follows:
1. Definitions.
(a) The term "Change in Control" means (1) an event of a nature that
(i) results in a change in control of the Association or the Holding Company
within the meaning of the Home Owners' Loan Act of 1933 and 12 C.F.R. Part 574
as in effect on the date hereof; or (ii) would be
required to be reported in response to Item 1 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"); (2) 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 Association or the Holding Company representing
20% or more of the Association's or the Holding Company's outstanding
securities; (3) individuals who are members of the board of directors of the
Association or the Holding Company 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 Holding Company's
stockholders was approved by the nominating committee serving under an Incumbent
Board, shall be considered a member of the Incumbent Board; or (4) a
reorganization, merger, consolidation, sale of all or substantially all of the
assets of the Association or the Holding Company or a similar transaction in
which the Association or the Holding Company is not the resulting entity. The
term "Change in Control" shall not include an acquisition of securities by an
employee benefit plan of the Association or the Holding Company. In the
application of 12 C.F.R. Part 574 to a determination of a Change in Control,
determinations to be made by the Office of Thrift Supervision ("OTS") or its
Director under such regulations shall be made by the Board of Directors.
(b) The term "Commencement Date" means June 30, 1998.
(c) The term "Date of Termination" means the earlier of (1) the date
upon which the Holding Company or the Association gives notice to the Employee
of the termination of the Employee's employment with the Holding Company or the
Association or (2) the date upon which the Employee ceases to serve as an
employee of either the Holding Company or the Association.
(d) The term "Involuntarily Termination" means termination of the
employment of Employee by either the Holding Company or the Association without
the Employee's express written consent, and shall include a material diminution
of or interference with the Employee's duties, responsibilities and benefits as
Vice President, Treasurer and Chief Financial Officer of the Holding Company and
of the Association, including (without limitation) any of the following actions
unless consented to in writing by the Employee: (1) a change in the principal
workplace of the Employee to a location outside of Westchester County, New York;
(2) a material demotion of the Employee; (3) a material reduction in the number
or seniority of other Holding Company and Association personnel reporting to the
Employee or a material reduction in the frequency with which, or in the nature
of the matters with respect to which, such personnel are to report to the
Employee, other than as part of a Association- or Holding Company-wide reduction
in staff; (4) a material adverse change in the Employee's salary, perquisites,
benefits, contingent benefits or vacation, other than as part of an overall
program applied uniformly and with equitable effect to all members of the senior
management of the Association or the Holding Company; and (5) a material
permanent increase in the required hours of work or the workload of the
Employee. The term "Involuntary Termination" does not include Termination for
Cause or termination of employment due to retirement, death, disability or
suspension or temporary or permanent prohibition from participation in the
conduct of the Association's affairs under Section 8 of the Federal Deposit
Insurance Act ("FDIA") and shall not include a material diminution of or
interference with the Employee's duties, responsibilities and benefits unless
the Employee submits to the Holding Company within 180 days after the occurrence
of such event written notice of his determination that such material diminution
constitutes Involuntary Termination.
(e) The terms "Termination for Cause" and "Terminated for Cause"
mean termination of the employment of the Employee because of the Employee's
personal dishonesty, incompetence, willful misconduct, breach of a fiduciary
duty involving 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.
2. Term; Termination of Prior Agreements. The term of this Agreement shall
be a period of three years commencing on the Commencement Date, subject to
earlier termination as provided herein. Beginning on the day following the
Commencement Date, and on each day thereafter, the term of this Agreement shall
be extended for a period of one day in addition to the then-remaining term,
provided that the Holding Company has not given notice to the Employee in
writing at least 90 days prior to such day that the term of this Agreement shall
not be extended further; and provided further that the daily extension of this
Agreement shall not continue beginning on the date when the Employee reaches age
65. Reference herein to the term of this Agreement shall refer to both such
initial term and such extended terms. Effective upon the Commencement Date, the
Prior Agreement shall terminate, with no obligation to the Employee thereunder
on the part of the Holding Company or the Association.
3. Severance Benefits; Regulatory Provisions.
(a) Involuntary Termination in Connection With a Change in Control.
In the event of Involuntary Termination in connection with or within 36 months
after a Change in Control which occurs at any time while the Employee is
employed under this Agreement, the Holding Company shall, subject to Section 4
of this Agreement, (1) pay to the Employee in a lump sum in cash within 25
business days after the Date of Termination an amount equal to 299% of the
Employee's "base amount" as defined in Section 280G of the Internal Revenue Code
of 1986, as amended (the "Code"); and (2) provide to the Employee during the
remaining term of this Agreement substantially the same health benefits the
Association maintained for executive officers at the Date of Termination on
terms as favorable to him as applied as of Date of Termination.
(b) Temporary Suspension or Prohibition. If the Employee is
suspended and/or temporarily prohibited from participating in the conduct of the
Association's affairs by a notice served under Section 8(e)(3) or (g)(1) of the
FDIA, 12 U.S.C. ss. 1818(e)(3) and (g)(1), the Holding Company'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
Holding Company may in its discretion (i) pay the Employee all or part of the
compensation withheld while its obligations under this Agreement were suspended
and (ii) reinstate in whole or in part any of its obligations which were
suspended.
(c) Permanent Suspension or Prohibition. If the Employee 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) or (g)(1) of the FDIA, 12 U.S.C. ss. 1818(e)(4) and
(g)(1), all obligations of the Holding Company 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) Default of the Association. If the Association is in default (as
defined in Section 3(x)(1) of the FDIA), all obligations under this Agreement
shall terminate as of the date of default, but this provision shall not affect
any vested rights of the contracting parties.
4. Certain Reductions of Payments.
(a) Notwithstanding any other provision of this Agreement, if the
value and amounts of benefits under this Agreement, together with any other
amounts and the value of benefits received or to be received by the Employee in
connection with a Change in Control would cause any amount to be nondeductible
by the Association or the Holding Company for federal income tax purposes
pursuant to Section 280G of the Code, then amounts and benefits under this
Agreement shall be reduced (not less than zero) to the extent necessary so as to
maximize amounts and the value of benefits to the Employee without causing any
amount to become nondeductible by the Association or the Holding Company
pursuant to or by reason of such Section 280G. The Employee shall determine the
allocation of such reduction among payments and benefits to the Employee.
(b) Any payments made to the Employee pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with 12 U.S.C.
1828(k) and any regulations promulgated thereunder.
5. No Mitigation. The Employee shall not be required to mitigate the
amount of any payment or benefit under this Agreement by seeking employment or
otherwise, nor shall the amount of any payment or benefit provided for in this
Agreement be reduced by any compensation earned by the Employee as the result of
any employment by another employer, by retirement benefits after the date of
employment or otherwise.
6. Attorneys Fees. If the Employee is purportedly Terminated for Cause and
the Holding Company denies payments or benefits under Section 3(a) of this
Agreement on the basis that the Employee experienced Termination for Cause
rather than Involuntary Termination, but it is determined by a court of
competent jurisdiction or by an arbitrator pursuant to Section 13 of this
Agreement that cause as contemplated by Section 1(e) of this Agreement did not
exist for such termination, or if in any event it is determined by any such
court or arbitrator that the Holding Company has failed to make timely payment
of any amounts owed to the Employee under this Agreement, the Employee shall be
entitled to reimbursement for all reasonable costs, including attorneys' fees,
incurred in challenging such termination or collecting such amounts. Such
reimbursement shall be in addition to all rights to which the Employee is
otherwise entitled under this Agreement.
7. No Assignments.
(a) This Agreement is personal to each of the parties hereto, and
neither party may assign or delegate any of its rights or obligations hereunder
without first obtaining the
written consent of the other party; provided, however, that the Holding Company
shall require any successor or assign (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Holding Company or the Association, by an assumption
agreement in form and substance satisfactory to the Employee, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Holding Company would be required to perform it if no such
succession or assignment had taken place. Failure of the Holding Company to
obtain such an assumption agreement prior to the effectiveness of any such
succession or assignment shall be a breach of this Agreement and shall entitle
the Employee to compensation from the Holding Company in the same amount and on
the same terms as the compensation pursuant to Section 3(a) hereof. For purposes
of implementing the provisions of this Section 7(a), the date on which any such
succession becomes effective shall be deemed the Date of Termination.
(b) This Agreement and all rights of the Employee hereunder shall
inure to the benefit of and be enforceable by the Employee's personal and legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Employee should die while any amounts would still
be payable to the Employee hereunder if the Employee had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Employee's devisee, legatee or other designee
or if there is no such designee, to the Employee's estate.
8. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, to the Holding Company at its
principal office, to the attention of the Board of Directors with a copy to the
Secretary of the Holding Company, or, if to the Employee, to such home or other
address as the Employee has most recently provided in writing to the Holding
Company or the Association.
9. Amendments. No amendments or additions to this Agreement shall be
binding unless in writing and signed by both parties, except as herein otherwise
provided.
10. Headings. The headings used in this Agreement are included solely for
convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
11. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
12. Governing Law. This Agreement shall be governed by the laws of the
United States to the extent applicable and otherwise by the laws of the State of
New York.
13. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
Attest: Yonkers Financial Corporation
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Secretary By:
Its:
Employee
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Xxxxxx X. Xxxxxxx
