EXHIBIT 10.13(B)
AMENDATORY AGREEMENT
This AMENDATORY AGREEMENT ("Agreement") is made effective as of October 17,
1997 by and between MSB BANCORP, INC. ("Holding Company"), a corporation
organized under the laws of Delaware, with its principal administrative office
at 00 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx, and XXXXXXX X. XXXXXXX ("Executive").
Any reference to "Savings Bank" herein shall mean MSB Bank, a wholly owned
subsidiary of the Holding Company, or any successor thereto.
W I T N E S S E T H :
WHEREAS, the Holding Company and the Executive entered into an employment
agreement dated January 1, 1996 ("Employment Agreement"), which was amended
effective as of January 1, 1997; and
WHEREAS, the Holding Company and Executive desire to amend the Employment
Agreement, effective as of October 17, 1997;
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:
FIRST. Section 2(a) of the Employment Agreement shall be amended in its
entirety to read as follows:
(a) The period of Executive's employment under this
Agreement ("Employment Period") shall be deemed to have commenced
as of the date first above written and shall end on December 31,
2000, subject to such extensions, if any, as are provided by the
Holding Company pursuant to Section 2(b).
SECOND. Section 2(b) of the Employment Agreement shall be amended in its
entirety to read as follows:
(b) Beginning on January 1, 1998, the Employment Period
shall be automatically extended for one (1) additional day each
day, unless either Executive or the Holding Company elects not to
extend the Employment Period further by giving written notice to
the other party, in which case the Employment Period shall be
fixed and shall end on the later of the last day of the
Employment Period specified in such notice or the third
anniversary of the date such written notice is given.
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THIRD. Section 5(b) of the Employment Agreement shall be amended in its
entirety to read as follows:
(b) If any of the events described in Section 5(a)
constituting a Change in Control have occurred or the Board has
determined that a Change in Control has occurred, Executive shall
be entitled to the payments and benefits provided in paragraphs
(c), (d), (e), (f), (g) and (h) of this Section 5 on the date
such Change in Control occurs, without regard to whether
Executive's employment with the Holding Company or the Savings
Bank terminates in connection with such Change in Control. The
benefits to be provided under, and the amounts payable pursuant
to, this Section 5 shall be provided and be payable to the
Executive, or in the event of his subsequent death, to his
beneficiary or beneficiaries, or to his estate, as the case may
be, without regard to proof of damages and without regard to the
Executive's efforts, if any, to mitigate damages, and shall not
be offset by, or reduced in respect of, any compensation or
benefits paid or provided, or to be paid or provided, to
Executive as a continuing employee of the Holding Company, the
Savings Bank or their successors or assigns, following the Change
in Control. The Holding Company and Executive hereby stipulate
that the damages which may be incurred by Executive following any
Change in Control are not capable of accurate measurement as of
the date first above written and that such liquidated damages
constitute reasonable damages under the circumstances.
FOURTH. Section 5(c) of the Employment Agreement shall be amended in its
entirety to read as follows:
(c) Upon the occurrence of a Change in Control, the Holding
Company shall be obligated to pay (or to cause the Savings Bank
to 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
the following: (i) the amount of Base Salary, bonuses and any
other cash compensation that would have been paid to Executive
during the remaining Employment Period; (ii) the amount of any
employer contributions that would have been made on Executive's
behalf under the Savings Bank's 401(k) Savings Plan (and any
other defined contribution plan maintained by the Holding Company
or the Savings Bank) during the remaining Employment Period;
(iii) the fair market value (determined as of the date of the
Change in Control) of any stock that would have been awarded or
allocated to Executive under the Savings Bank's ESOP or BRP (or
any other stock-based employee benefit or compensation plan or
arrangement maintained by the Holding Company or the Savings
Bank) during the remaining Employment Period; (iv) the lump sum
present value of the benefits which the Executive would have
accrued under the Savings Bank's Retirement Plan (and any other
defined benefit plan maintained by the Holding Company or the
Savings Bank) during the remaining Employment Period; and (v) the
lump sum present value of the additional benefits which Executive
would have accrued under Section 3(d) of this Agreement during
the remaining Employment Period. The amounts specified in the
preceding sentence shall be determined based on the terms of the
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applicable plan or plans (including the actuarial
assumptions used therein) as in effect on the date of the
Change in Control, assuming that, during the remaining
Employment Period, Executive continued to receive his Base
Salary at the level in effect on the date of the Change in
Control, earned the highest level of bonuses in effect for
him prior to the Change in Control and made the maximum
amount of employee contributions permitted or required under
the applicable plan or plans. At the election of the
Executive, which election is to be made within thirty (30)
days of the date of the Change in Control, the sum of the
amounts to be paid under this Section 5(c) shall be paid in
a lump sum or paid in equal monthly installments during the
remaining Employment Period. In the event that no election
is made, payment to the Executive will be made on a monthly
basis during the remaining Employment Period.
FIFTH. Section 5(d) of the Employment Agreement shall be amended in its
entirety to read as follows:
(d) Upon the occurrence of a Change in Control, the Holding
Company will cause to be continued, during the remaining
Employment Period, life, medical, dental and disability coverage
substantially identical to the coverage maintained by the Savings
Bank or the Holding Company for Executive and his family
immediately prior to the Change in Control.
SIXTH. Section 5(g) of the Employment Agreement shall be redesignated
Section 5(h), and any cross-references thereto shall be modified accordingly,
and a new Section 5(g) shall be added to the Employment Agreement to read as
follows:
(g) Upon the occurrence of a Change in Control, the Holding
Company will cause to cause to be continued, during the remaining
Employment Period, at no cost to Executive, the fringe benefits
and perquisites made available or provided to Executive
immediately prior to the Change in Control, including, but not
limited to, use of the automobile and the cellular and automobile
telephones provided to Executive by the Holding Company or the
Savings Bank immediately prior to the Change in Control, and
payment of all membership fees, dues, capital contributions and
other expenses for membership in such clubs, associations or
other organizations for which expenses were paid by the Holding
Company or the Savings Bank on behalf of the Executive prior to
the Change in Control. In the event that Executive's employment
continues with the Holding Company or the Savings Bank, or their
successors or assigns, following the Change in Control,
Executive's principal place of employment shall be not more than
30 miles from the location of his principal place of employment
immediately prior to the Change in Control and he shall be
provided with a private office, secretarial services and other
support services and facilities comparable to those provided to
him by the Holding Company and the Savings Bank immediately prior
to the Change in Control.
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SEVENTH. Except as expressly amended herein, the Employment Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, MSB BANCORP, INC. has caused this Agreement to be
executed and its seal to be affixed hereunto by its duly authorized officer and
director, and Executive has signed this Agreement, on the 31st day of October,
1997.
ATTEST: MSB BANCORP, INC.
/s/ Xxxxx XxXxxx By: /s/ Xxxxxxx X. Xxxxx
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Secretary XXXXXXX X. XXXXX
XXXXX XXXXXX President and Chief Executive Officer
[SEAL]
WITNESS:
/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX
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