Exhibit 10.20
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
as of September 13, 2001 and among XXXXXX CITY SAVINGS BANK, a savings bank
organized and operating under the laws of the State of New Jersey and having an
office at West 00 Xxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000-0000 (the "Bank"),
XXXXXX CITY BANCORP, INC., a business corporation organized and existing under
the laws of the State of Delaware and having an office at West 00 Xxxxxxx Xxxx,
Xxxxxxx, Xxx Xxxxxx 00000-0000 (the "Company") and XXXXXXX X. XXXXXXXX, an
individual residing at _______________ (the "Executive").
INTRODUCTORY STATEMENT
The Bank is a wholly-owned subsidiary of the Company, which in turn
is a publicly traded company and a majority-owned subsidiary of Xxxxxx City,
MHC, a New Jersey mutual holding company (the "MHC"). The Executive is currently
the Chairman and Chief Executive Officer of the Bank and the Company pursuant to
an Employment Agreement made and entered into as of July 13, 1999 by and among
the Executive, the Bank and the Company (the "Current Agreement"), has served
the Bank in various executive capacities for more than 30 years, and has served
the Company and the MHC since their formation in 1999. The Executive has
attained normal retirement age and has expressed to the Board of Directors of
the Bank, the Company and the MHC a desire to begin to plan for his retirement.
To provide for an orderly management transition, the Board of Directors of the
Bank and the Company wish to secure for themselves and the Executive's successor
continued access to the Executive's knowledge and experience for a transition
period preceding the Executive's retirement, and the Executive has agreed to
make his services available on a transitional basis.
The terms and conditions which the Bank, the Company and the
Executive have agreed to are as follows.
AGREEMENT
SECTION 1 TRANSITION FROM THE CURRENT AGREEMENT.
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The Executive shall continue in the service of the Bank and the
Company as their Chairman and Chief Executive Officer through December 31, 2001
pursuant to the Current Agreement. If the Executive's employment with the Bank
or the Company terminates for any reason prior to January 1, 2002, the relative
rights and obligations of the parties shall be determined according to the terms
of the Current Agreement. On December 31, 2001, the Current Agreement shall
terminate without any notice or other action on the part of any party and the
Executive shall resign as Chief Executive Officer of the Bank, the Company and
the MHC, unless his employment shall have previously terminated. For the period
beginning on the date hereof and ending on December 31, 2001:
(a) the Executive shall work with his designated successor to effect
a gradual delegation of the functions of the Chief Executive Officer in
furtherance of a complete transition of responsibilities as of December 31,
2001; and
(b) the Executive shall participate as an EX OFFICIO member of the
Compensation Committee of the Board of Directors of the Bank and the
Company in the recruitment and selection of a new senior executive to be
appointed by the Boards of Directors serve as a chief operating officer or
chief financial officer; and
(c) the Executive shall assist the Nominating Committee of the Board
of Directors of the Bank and the Company in evaluating the possibility and
timing of the recruitment of a new non-employee director.
The Current Agreement is hereby amended to the extent necessary to reflect the
termination of the Current Agreement as of December 31, 2001 and the interim
changes in the Executive's duties and responsibilities, all as provided herein.
SECTION 2 CONTINUED EMPLOYMENT AS CHAIRMAN.
---------------------------------
If employed by the Company and the Bank on December 31, 2001, the
Executive shall continue to be employed as the Chairman of the Bank and the
Company for a period beginning January 1, 2002 and ending on December 31, 2004
(the "Employment Period") on the terms and conditions set forth in this
Agreement. Nothing in this Agreement shall be deemed to prohibit the Company or
the Bank from terminating the Executive's employment before the end of the
Employment Period with or without notice for any reason. This Agreement shall
determine the relative rights and obligations of the Bank, the Company and the
Executive in the event of any such termination. In addition, nothing in this
Agreement shall require the termination of the Executive's employment at the
expiration of the Employment Period. Any such continuation shall be on an "at
will" basis unless the Bank, the Company and the Executive agree otherwise.
SECTION 3 DUTIES.
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As Chairman of the Company and the Bank, the Executive shall have
such power, authority and responsibility and perform such duties as are
prescribed by or under their respective By-Laws and as are customarily
associated with such positions, including but not limited to serving as the
presiding officer at all meetings of the Board of Directors, Executive Committee
and stockholders of the Bank and the Company. The Executive shall have no direct
authority or control over the business and operations of the Company or the Bank
or supervision or direction of their respective staff but instead shall monitor
the Bank's and the Company's performance as a "lead director" on behalf of the
Board of Directors. In this capacity, the Executive shall call and conduct
meetings of the Company's Board of Directors, to be held quarterly or at such
other times as the Board of Directors may determine, for the purpose of
providing a systematic review and assessment of the Company's policies, plans
and options for the protection and enhancement of shareholder value and shall
work with the Company's Chief Executive
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Officer to develop the agendas for such meetings and to establish the form and
content of the reports and other materials to be furnished to members of the
Board of Directors in connection with such meetings. The Executive shall also be
available to provide advice and counsel to the Board of Directors and the Chief
Executive Officer as either of them may reasonably request. The Executive shall
devote to the Bank and the Company such time and attention as he, in the
exercise of reasonable business judgment, shall deem necessary to perform the
duties set forth herein.
SECTION 4 CASH COMPENSATION.
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In consideration for the services to be rendered by the Executive
hereunder, the Bank and the Company shall pay to him a salary at an annual rate
no less than the annual rate of EIGHTH HUNDRED SEVENTY FIVE THOUSAND DOLLARS
($875,000), payable in approximately equal installments in accordance with their
respective customary payroll practices for senior officers. The Bank's and the
Company's respective Boards of Directors shall review the Executive's annual
rate of salary at such times during the Employment Period as they deem
appropriate and may; in their discretion, approve a salary increase. In addition
to salary, the Executive may receive other cash compensation from the Company or
the Bank for services hereunder at such times, in such amounts and on such terms
and conditions as the Boards of Directors of the Bank and the Company may
determine. If the Executive is discharged or suspended, or is subject to any
regulatory prohibition or restriction with respect to participation in the
affairs of the Bank, he shall continue to perform services for the Company in
accordance with this Agreement but shall not directly or indirectly provide
services to or participate in the affairs of the Bank in a manner inconsistent
with the terms of such discharge or suspension or any applicable regulatory
order.
SECTION 5 EMPLOYEE BENEFIT PLANS AND PROGRAMS.
------------------------------------
During the Employment Period, the Executive shall be treated as an
employee of the Company and the Bank and shall be entitled to participate in and
receive benefits under any and all qualified or non-qualified retirement,
pension, savings, profit-sharing or stock bonus plans, any and all group life,
health (including hospitalization, medical and major medical), dental, accident
and long-term disability insurance plans, and any other employee benefit program
as may from time to time be maintained by, or cover employees of, the Company
and the Bank, in accordance with the terms and conditions of such employee
benefit and programs and consistent with the Company's and the Bank's customary
practices.
SECTION 6 INCENTIVE COMPENSATION PROGRAMS.
--------------------------------
During the Employment Period, the Executive shall not participate in
the Executive Annual Incentive Plan, the Long-Term Incentive Plan or other cash
bonus or incentive compensation programs. The extent of the Executive's
participation in any stock option grants, restricted stock awards or other
equity compensation awards made during the Employment Period shall be determined
by the Company's Board of Directors or a duly authorized committee thereof.
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SECTION 7 INDEMNIFICATION AND INSURANCE.
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(a) During the Employment Period and for a period of six years
thereafter, the Company and the Bank shall cause the Executive to be covered by
and named as an insured under any policy or contract of insurance obtained by
them to insure their directors and officers against personal liability for acts
or omissions in connection with service as an officer or director of the Company
or the Bank or service in other capacities at their request. The coverage
provided to the Executive pursuant to this section 7 shall be of the same scope
and on the same terms and conditions as the coverage (if any) provided to other
officers or directors of the Company and the Bank.
(b) To the maximum extent permitted under applicable law, during the
Employment Period and for a period of six years thereafter, the Company and the
Bank shall indemnify the Executive against and hold him harmless from any costs,
liabilities, losses and exposures to the fullest extent and on the most
favorable terms and conditions that similar indemnification is offered to any
director or officer of the Company and the Bank or any subsidiary or affiliate
thereof.
SECTION 8 OUTSIDE ACTIVITIES.
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The Executive may serve as a member of the boards of directors of
such business, community and charitable organizations as he may disclose to and
as may be approved by the Boards of Directors of the Company and the Bank (which
approval shall not be unreasonably withheld); PROVIDED, HOWEVER, that such
service shall not materially interfere with the performance of his duties under
this Agreement. The Executive may also engage in personal business and
investment activities which do not materially interfere with the performance of
his duties hereunder; PROVIDED, HOWEVER, that such activities are not prohibited
under any code of conduct or investment or securities trading policy established
by the Company or the Bank and generally applicable to all similarly situated
executives.
SECTION 9 WORKING FACILITIES AND EXPENSES.
--------------------------------
The Executive's principal place of employment shall be at the Bank's
executive offices at the address first above written, or at such other location
as the Bank, the Company and the Executive may mutually agree upon. The Bank and
the Company shall provide the Executive at his principal place of employment
with a private office, secretarial services and other support services and
facilities suitable to his positions with the Company and the Bank and necessary
or appropriate in connection with the performance of his assigned duties under
this Agreement. The Company shall provide to the Executive for his exclusive use
an automobile owned or leased by the Company and appropriate to his position, to
be used in the performance of his duties hereunder, including commuting to and
from his personal residence. The Bank or the Company shall reimburse the
Executive for his ordinary and necessary business expenses, including, without
limitation, all expenses associated with his business use of the aforementioned
automobile, fees for memberships in such clubs and organizations as the
Executive and the Company shall mutually agree are necessary and appropriate for
business purposes,
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and his travel and entertainment expenses incurred in connection with the
performance of his duties under this Agreement (including but not limited to
expenses associated with attendance at annual conventions of America's Community
Bankers, the New Jersey League Community & Savings Bankers, or their
successors), in each case upon presentation to the payer of an itemized account
of such expenses in such form as the payer may reasonably require.
SECTION 10 TERMINATION OF EMPLOYMENT DUE TO DEATH.
---------------------------------------
The Executive's employment with the Bank and the Company shall
terminate, automatically and without any further action on the part of any party
to this Agreement, on the date of the Executive's death. In such event:
(a) The Bank and the Company shall pay to the Executive's estate his
earned but unpaid compensation (including, without limitation, salary and
all other items which constitute wages under applicable law) as of the date
of his termination of employment. This payment shall be made at the time
and in the manner prescribed by law applicable to the payment of wages but
in no event later than 30 days after the date of the Executive's
termination of employment.
(b) The Company and the Bank shall provide the benefits, if any, due
to the Executive's estate, surviving dependents or his designated
beneficiaries under the employee benefit plans and programs and
compensation plans and programs maintained for the benefit of the officers
and employees of the Company and the Bank. The time and manner of payment
or other delivery of these benefits and the recipients of such benefits
shall be determined according to the terms and conditions of the applicable
plans and programs.
The payments and benefits described in sections 10(a) and (b) shall
be referred to in this Agreement as the "Standard Termination Entitlements."
SECTION 11 TERMINATION DUE TO DISABILITY.
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The Bank and the Company may terminate the Executive's employment
upon a determination, by separate votes of a majority of the members of the
Boards of Directors of the Company and the Bank, acting in reliance on the
written advice of a medical professional acceptable to them, that the Executive
is suffering from a physical or mental impairment which, at the date of the
determination, has prevented the Executive from performing his assigned duties
on a substantially full-time basis for a period of at least one hundred and
eighty (180) days during the period of one (1) year ending with the date of the
determination or is likely to result in death or prevent the Executive from
performing his assigned duties on a substantially full-time basis for a period
of at least one hundred and eighty (180) days during the period of one (1) year
beginning with the date of the determination. In such event:
(a) The Bank and the Company shall pay and deliver to the Executive
(or in the event of his death before payment, to his estate and surviving
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dependents and beneficiaries, as applicable) the Standard Termination
Entitlements.
(b) In addition to the Standard Termination Entitlements, the Bank
and the Company shall continue to pay the Executive his base salary, at the
annual rate in effect for him immediately prior to the termination of his
employment, during a period ending on the earliest of: (i) the expiration
of one hundred and eighty (180) days after the date of termination of his
employment; (ii) the date on which long-term disability insurance benefits
are first payable to him under any long-term disability insurance plan
covering employees of the Bank or the Company (the "LTD Eligibility Date");
(iii) the date of his death; and (iv) the expiration of the Remaining
Unexpired Employment Period (the "Initial Continuation Period"). If the end
of the Initial Continuation Period is neither the LTD Eligibility Date nor
the date of his death, the Company and the Bank shall continue to pay the
Executive his base salary, at an annual rate equal to sixty percent (60%)
of the annual rate in effect for him immediately prior to the termination
of his employment, during an additional period ending on the earliest of
the LTD Eligibility Date, the date of his death and the expiration of the
Remaining Unexpired Employment Period.
A termination of employment due to disability under this section 11 shall be
effected by joint notice of termination given to the Executive by the Company
and the Bank and shall take effect on the later of the effective date of
termination specified in such notice or the date on which the notice of
termination is deemed given to the Executive.
SECTION 12 DISCHARGE WITH CAUSE.
---------------------
(a) The Bank and the Company may terminate the Executive's
employment during the Employment Period, and such termination shall be deemed to
have occurred with "Cause" only if;
(i) the Board of Directors of the Bank and the Board of Directors of
the Company, by separate majority votes of their entire membership,
determine that the Executive (A) has willfully and intentionally failed to
perform his assigned duties under this Agreement in any material respect
(including, for these purposes, the Executive's inability to perform such
duties as a result of drug or alcohol dependency); (B) has willfully and
intentionally engaged in dishonest or illegal conduct in connection with
his performance of services for the Company or the Bank or has been
convicted of a felony; (C) has willfully violated, in any material respect,
any law, rule, regulation, written agreement or final cease-and-desist
order with respect to his performance of services for the Company or the
Bank; or (D) has willfully and intentionally breached the material terms of
this Agreement in any material respect; and
(ii) at least forty-five (45) days prior to the votes contemplated
by section 12(a)(i), the Bank and the Company have provided the Executive
with notice of their intent to discharge the Executive for Cause, detailing
with
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particularity the facts and circumstances which are alleged to constitute
Cause (the "Notice of Intent to Discharge"); and
(iii) after the giving of the Notice of Intent to Discharge and
before the taking of the votes contemplated by section 12(a)(i), the
Executive (together with his legal counsel, if he so desires) is afforded a
reasonable opportunity to make both written and oral presentations before
the Boards of Directors of the Company and the Bank for the purpose of
refuting the alleged grounds for Cause for his discharge; and
(iv) after the votes contemplated by section 12(a)(i), the Company
and the Bank have furnished to the Executive a notice of termination which
shall specify the effective date of his termination of employment (which
shall in no event be earlier than the date on which such notice is deemed
given) and include a copy of a resolution or resolutions adopted by the
Board of Directors of the Bank and the Board of Directors of the Company,
certified by their corporate secretaries and signed by each member of their
respective Board of Directors voting in favor of adoption of the
resolution(s), authorizing the termination of the Executive's employment
with Cause and stating with particularity the facts and circumstances found
to constitute Cause for his discharge (the "Final Discharge Notice").
For purposes of this section 12, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company and the
Bank. Any act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board and the Bank Board or based upon the
written advice of counsel for the Company or the Bank shall be conclusively
presumed to be done, or omitted to be done, by the Executive in good faith and
in the best interests of the Company and the Bank.
(b) If the Executive is discharged during the Employment Period with
Cause, the Company and the Bank shall pay and provide to him (or, in the event
of his death, to his estate, his surviving beneficiaries and his dependents) the
Standard Termination Entitlements only. Following the giving of a Notice of
Intent to Discharge, the Bank and the Company may temporarily suspend the
Executive's duties and authority and, in such event, may also suspend the
payment of salary and other cash compensation, but not the Executive's
participation in retirement, insurance and other employee benefit plans. If the
Executive is not discharged, or is discharged without Cause, within forty-five
(45) days after the giving of a Notice of Intent to Discharge, payments of
salary and cash compensation shall resume, and all payments withheld during the
period of suspension shall be promptly restored. If the Executive is discharged
with Cause not later than forty-five (45) days after the giving of the Notice of
Intent to Discharge, all payments withheld during the period of suspension shall
be deemed forfeited and shall not be included in the Standard Termination
Entitlements. If a Final Discharge Notice is given later than forty-five (45)
days, but sooner than ninety (90) days, after the giving of the Notice of Intent
to Discharge, all payments made to the Executive during the period beginning
with the giving of the Notice of Intent to Discharge and ending with the
Executive's discharge
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with Cause shall be retained by the Executive and shall not be applied to offset
the Standard Termination Entitlements. If the Bank and the Company do not give a
Final Discharge Notice to the Executive within ninety (90) days after giving a
Notice of Intent to Discharge, the Notice of Intent to Discharge shall be deemed
withdrawn and any future action to discharge the Executive with Cause shall
require the giving of a new Notice of Intent to Discharge.
SECTION 13 DISCHARGE WITHOUT CAUSE.
------------------------
The Bank and the Company may discharge the Executive at any time
during the Employment Period and, unless such discharge constitutes a discharge
with Cause:
(a) The Bank and the Company shall pay and deliver to the Executive
(or in the event of his death before payment, to his estate and surviving
dependents and beneficiaries, as applicable) the Standard Termination
Entitlements.
(b) In addition to the Standard Termination Entitlements:
(i) Through the last day of the Employment Period, the
Bank and the Company shall provide for the Executive and his
dependents continued group life, health (including hospitalization,
medical and major medical), dental, accident and long-term
disability insurance benefits on substantially the same terms and
conditions (including any required premium-sharing arrangements,
co-payments and deductibles) in effect for them immediately prior to
the Executive's termination. The coverage provided under this
section 13(b)(i) may, at the election of the Bank and the Company,
be secondary to the coverage provided as part of the Standard
Termination Entitlements and to any employer-paid coverage provided
by a subsequent employer or through Medicare, with the result that
benefits under the other coverages will offset the coverage required
by this section 13(b)(i).
(ii) The Bank and the Company shall make a lump sum
payment to the Executive (or, in the event of his death before
payment, to his estate), in an amount equal to the sum of the
remaining salary payments that the Executive would have earned if he
had continued working for the Company and the Bank through the last
day of the Employment Period at the highest annual rate of salary
achieved during the Employment Period, without discount for early
payment. Such shall be made within five (5) business days after the
Executive's termination of employment and shall be in lieu of any
claim to a continuation of base salary which the Executive might
otherwise have and in lieu of cash severance benefits under any
severance benefits program which may be in effect for officers or
employees of the Bank or the Company.
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(iii) The Bank and the Company shall make a lump sum
payment to the Executive (or, in the event of his death before
payment, to his estate), in an amount equal to the product of (A)
the lump sum payable under section 13(b)(ii), multiplied by (B) the
aggregate rate (expressed as a percentage of compensation) at which
employer contributions were made to the Profit Incentive Bonus Plan
and deemed credited under the Supplemental Savings Plan for the
Executive for the most recently completed fiscal year of such plans.
Such shall be made within five (5) business days after the
Executive's termination of employment and shall be in lieu of any
claim to a continuation of participation in such plans beyond the
date of termination of employment.
The payments and benefits described in section 13(b) are referred to in this
Agreement as the "Additional Termination Entitlements".
SECTION 14 RESIGNATION.
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(a) The Executive may resign from his employment with the Bank and
the Company at any time. A resignation under this section 14 shall be effected
by notice of resignation given by the Executive to the Company and the Bank and
shall take effect on the later of the effective date of termination specified in
such notice or the date on which the notice of termination is deemed given by
the Executive. The Executive's resignation of any of the positions within the
Bank or the Company to which he has been assigned shall be deemed a resignation
from all such positions:
(b) The Executive's resignation shall be deemed to be for "Good
Reason" if the effective date of resignation occurs within ninety (90) days
after any of the following:
(i) the failure of the Company or the Bank (whether by act or
omission of their respective Boards of Directors, or otherwise) to appoint
or re-appoint or elect or re-elect the Executive to the position(s) of
Chairman of the Company and the Bank;
(ii) the failure of the Bank's and the Company's respective
shareholders (whether in an election in which the Executive stands as a
nominee or in an election where the Executive is not a nominee) to elect or
re-elect the Executive to a seat on the Board of Directors at the
expiration of his term of membership, unless such failure is a result of
the Executive's refusal to stand for election;
(iii) a material failure by the Company or the Bank, whether by
amendment of their respective certificates of incorporation or
organization, by-laws, action of their respective Boards of Directors or
otherwise, to vest in the Executive the functions, duties, or
responsibilities prescribed in section 3 of this Agreement; PROVIDED that
the Executive shall have given notice of such failure to
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the Company and the Bank, and the Company or the Bank have not fully cured
such failure within thirty (30) days after such notice is deemed given;
(iv) any reduction of the Executive's rate of base salary in effect
from time to time, whether or not material, or any failure (other than due
to reasonable administrative error that is cured promptly upon notice) to
pay any portion of the Executive's compensation as and when due;
(v) any material breach by the Company or the Bank of any material
term, condition or covenant contained in this Agreement; PROVIDED that the
Executive shall have given notice of such material adverse effect to the
Company and the Bank, and the Company or the Bank have not fully cured such
failure within thirty (30) days after such notice is deemed given; or
(vi) a change in the Executive's principal place of employment to a
place that is not the principal executive office of the Bank, or a
relocation of the Bank's principal executive office to a location that is
both more than twenty-five (25) miles away from the Executive's principal
residence and more than twenty-five (25) miles away from the location of
the Bank's principal executive office on the date of this Agreement.
In all other cases, a resignation by the Executive shall be deemed to be without
Good Reason.
(c) In the event of the Executive's resignation before the
expiration of the Employment Period, the Company and the Bank shall pay and
deliver the Standard Termination Entitlements. In addition, if the Executive's
resignation is deemed to be a resignation with Good Reason, the Company and the
Bank shall also pay and deliver the Additional Termination Entitlements.
SECTION 15 TERMS AND CONDITIONS OF THE ADDITIONAL TERMINATION
ENTITLEMENTS.
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The Company, the Bank and the Executive hereby stipulate that the
damages which may be incurred by the Executive following any termination of
employment are not capable of accurate measurement as of the date first above
written and that the Additional Termination Entitlements constitute reasonable
damages under the circumstances and shall be payable without any requirement of
proof of actual damage and without regard to the Executive's efforts, if any, to
mitigate damages. The Company, the Bank and the Executive further agree that the
Company and the Bank may condition the payment and delivery of the Additional
Termination Entitlements on the receipt of the Executive's resignation from any
and all positions which he holds as an officer, director or committee member
with respect to the Company, the Bank or any subsidiary or affiliate of either
of them.
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XXXXXXX 00 XXXXXXXXXXX XXXX XX FOLLOWING A CHANGE OF CONTROL.
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(a) A "Change of Control" shall be deemed to have occurred upon the
happening of any of the following events:
(i) the consummation of a reorganization, merger or consolidation of
the Company with one or more other persons, other than a transaction
following which:
(A) at least 51% of the equity ownership interests of
the entity resulting from such transaction are beneficially owned
(within the meaning of Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended ("Exchange Act")) in substantially
the same relative proportions by persons who, immediately prior to
such transaction, beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) at least 51% of the
outstanding equity ownership interests in the Company; and
(B) at least 51% of the securities entitled to vote
generally in the election of directors of the entity resulting from
such transaction are beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) in substantially the same
relative proportions by persons who, immediately prior to such
transaction, beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) at least 51% of the securities
entitled to vote generally in the election of directors of the
Company;
(ii) the acquisition of all or substantially all of the assets of
the Company or beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 25% or more of the outstanding
securities of the Company entitled to vote generally in the election of
directors by any person or by any persons acting in concert;
(iii) a complete liquidation or dissolution of the Company;
(iv) the occurrence of any event if, immediately following such
event, at least 50% of the members of the Board of Directors of the Company
do not belong to any of the following groups:
(A) individuals who were members of the Board of
Directors of the Company on the date of this Agreement; or
(B) individuals who first became members of the Board of
Directors of the Company after the date of this Agreement either:
(1) upon election to serve as a member of the Board of
Directors of the Company by affirmative vote of
three-quarters of the members of such board, or of a
nominating
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committee thereof, in office at the time of such first
election; or
(2) upon election by the shareholders of the Board of
Directors of the Company to serve as a member of such
board, but only if nominated for election by affirmative
vote of three-quarters of the members of the Board of
Directors of the Company, or of a nominating committee
thereof, in office at the time of such first nomination;
PROVIDED, HOWEVER, that such individual's election or nomination did
not result from an actual or threatened election contest (within the meaning of
Rule l4a-11 of Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents (within the meaning of
Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) other than by
or on behalf of the Board of Directors of the Company; or
(v) any event which would be described in section 16(a)(i), (ii),
(iii) or (iv) if the term "Bank" were substituted for the term "Company"
therein.
In no event, however, shall a Change of Control be deemed to have occurred as a
result of any acquisition of securities or assets of the Company, the Bank, or a
subsidiary of either of them, by the Company, the Bank, or any subsidiary of
either of them, or by any employee benefit plan maintained by any of them. For
purposes of this section 16(a), the term "person" shall have the meaning
assigned to it under sections 13(d)(3) or 14(d)(2) of the Exchange Act.
(b) For purposes of this Agreement, a "Pending Change of Control"
shall mean: (i) the signing of a definitive agreement for a transaction which,
if consummated, would result in a Change of Control; (ii) the commencement of a
tender offer which, if successful, would result in a Change of Control; or (iii)
the circulation of a proxy statement seeking proxies in opposition to management
in an election contest which, if successful, would result in a Change of
Control.
(c) Notwithstanding anything in this Agreement to the contrary: (i)
in the event of the Executive's resignation within sixty (60) days after the
occurrence of a Change of Control, he shall be entitled to receive the Standard
Termination Entitlements and Additional Termination Entitlements that would be
payable if his resignation were a resignation for a Good Reason, without regard
to the actual circumstances of his resignation; and (ii) for a period of one (1)
year after the occurrence of a Change of Control, no discharge of the Executive
shall be deemed a discharge with Cause unless the votes contemplated by section
12(a) of this Agreement are supported by at least two-thirds of the members of
the Board of Directors of the Company and the Bank at the time the vote is taken
who were also members of the Board of Directors of the Company and the Bank
immediately prior to the Change of Control.
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SECTION 17 TAX INDEMNIFICATION.
--------------------
(a) If the Executive's employment terminates under circumstances
entitling him (or in the event of his death, his estate) to the Additional
Termination Entitlements, the Company shall pay to the Executive (or in the
event of his death, his estate) an additional amount intended to indemnify him
against the financial effects of the excise tax imposed on excess parachute
payments under section 280G of the Code (the "Tax Indemnity Payment"). The Tax
Indemnity Payment shall be determined under the following formula:
E X P
X= --------------------------------
1-[(F1 x (1-SLI)) + SLI + E + M]
where
E= the percentage rate at which an excise tax
is assessed under section 4999 of the Code;
P= the amount with respect to which such excise
tax is assessed, determined without regard
to this section 17;
FI= the highest marginal rate of income tax
applicable to the Executive under the Code
for the taxable year in question;
SLI= the sum of the highest marginal rates of
income tax applicable to the Executive under
all applicable state and local laws for the
taxable year in question; and
M= the highest marginal rate of Medicare tax
applicable to the Executive under the Code
for the taxable year in question.
Such computation shall be made at the expense of the Company by an
attorney or a firm of independent certified public accountants selected by the
Executive and reasonably satisfactory to the Company (the "Tax Advisor") and
shall be based on the following assumptions: (i) that a change in ownership, a
change in effective ownership or control, or a change in the ownership of a
substantial portion of the assets, of the Bank or the Company has occurred
within the meaning of section 280G of the Code (a "280G Change of Control");
(ii) that all direct or indirect payments made to or benefits conferred upon the
Executive on account of his termination of employment are "parachute payments"
within the meaning of section 280G of the Code; and (iii) that no portion of
such payments is reasonable compensation for services rendered prior to the
Executive's termination of employment.
(b) With respect to any payment that is presumed to be a parachute
payment for purposes of section 280G of the Code, the Tax Indemnity Payment
shall be made to the Executive on the earlier of the date the Company, the Bank
or any direct or
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indirect subsidiary or affiliate of the Company or the Bank is required to
withhold such tax or the date the tax is required to be paid by the Executive,
unless, prior to such date, the Company delivers to the Executive the written
opinion, in form and substance reasonably satisfactory to the Executive, of the
Tax Advisor or of an attorney or firm of independent certified public
accountants selected by the Company and reasonably satisfactory to the
Executive, to the effect that the Executive has a reasonable basis on which to
conclude that (i) no 280G Change in Control has occurred, or (ii) all or part of
the payment or benefit in question is not a parachute payment for purposes of
section 280G of the Code, or (iii) all or a part of such payment or benefit
constitutes reasonable compensation for services rendered prior to the 280G
Change of Control, or (iv) for some other reason which shall be set forth in
detail in such letter, no excise tax is due under section 4999 of the Code with
respect to such payment or benefit (the "Opinion Letter"). If the Company
delivers an Opinion Letter, the Tax Advisor shall recompute, and the Company
shall make, the Tax Indemnity Payment in reliance on the information contained
in the Opinion Letter.
(c) In the event that the Executive's liability for the excise tax
under section 4999 of the Code for a taxable year is subsequently determined to
be different than the amount with respect to which the Tax Indemnity Payment is
made, the Executive or the Company, as the case may be, shall pay to the other
party at the time that the amount of such excise tax is finally determined, an
appropriate amount, plus interest, such that the payment made under section
17(b), when increased by the amount of the payment made to the Executive under
this section 17(c), or when reduced by the amount of the payment made to the
Company under this section 17(c), equals the amount that should have properly
been paid to the Executive under section 17(a). The interest paid to the Company
under this section 17(c) shall be determined at the rate provided under section
1274(b)(2)(B) of the Code. The payment made to the Executive shall include such
amount of interest as is necessary to satisfy any interest assessment made by
the Internal Revenue Service and an additional amount equal to any monetary
penalties assessed by the Internal Revenue Service on account of an underpayment
of the excise tax. To confirm that the proper amount, if any, was paid to the
Executive under this section 17, the Executive shall furnish to the Company a
copy of each tax return which reflects a liability for an excise tax, at least
20 days before the date on which such return is required to be filed with the
Internal Revenue Service. Nothing in this Agreement shall give the Company any
right to control or otherwise participate in any action, suit or proceeding to
which the Executive is a party as a result of positions taken on his federal
income tax return with respect to his liability for excise taxes under section
4999 of the Code.
SECTION 18 COVENANT NOT TO COMPETE.
------------------------
The Executive hereby covenants and agrees that, in the event of his
termination of employment with the Company prior to the expiration of the
Employment Period, for a period of one year following the date of his
termination of employment with the Company or the Bank, he shall not, without
the written consent of the Company, become an officer, employee, consultant,
director or trustee of any savings bank, savings and loan association, savings
and loan holding company, bank or bank holding company, or any direct or
indirect subsidiary or affiliate of any such entity, that entails working
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within any city or county in the State of New Jersey or any other county in
which the Company or the Bank maintains an office; PROVIDED, HOWEVER, that this
section 18 shall not apply if the Executive is entitled to the Additional
Termination Entitlements.
SECTION 19 CONFIDENTIALITY.
----------------
Unless he obtains the prior written consent of the Company, the
Executive shall keep confidential and shall refrain from using for the benefit
of himself, or any person or entity other than the Company or any entity which
is a subsidiary of the Company or of which the Company is a subsidiary, any
material document or information obtained from the Company, or from its parent
or subsidiaries, in the course of his employment with any of them concerning
their properties, operations or business (unless such document or information is
readily ascertainable from public or published information or trade sources or
has otherwise been made available to the public through no fault of his own)
until the same ceases to be material (or becomes so ascertainable or available);
PROVIDED, HOWEVER, that nothing in this section 19 shall prevent the Executive,
with or without the Company's consent, from participating in or disclosing
documents or information in connection with any judicial or administrative
investigation, inquiry or proceeding to the extent that such participation or
disclosure is required under applicable law.
SECTION 20 SOLICITATION.
-------------
The Executive hereby covenants and agrees that, for a period of one
year following his termination of employment with the Company or the Bank, he
shall not, without the written consent of the Company and the Bank, either
directly or indirectly:
(a) solicit, offer employment to, or take any other action intended,
or that a reasonable person acting in like circumstances would expect, to
have the effect of causing any officer or employee of the Company, the Bank
or any of their respective subsidiaries or affiliates to terminate his or
her employment and accept employment or become affiliated with, or provide
services for compensation in any capacity whatsoever to, any savings bank,
savings and loan association, bank, bank holding company, savings and loan
holding company, or other institution engaged in the business of accepting
deposits, making loans or doing business within the counties specified in
section 18;
(b) provide any information, advice or recommendation with respect
to any such officer or employee of any savings bank, savings and loan
association, bank, bank holding company, savings and loan holding company,
or other institution engaged in the business of accepting deposits, making
loans or doing business within the counties specified in section 18; that
is intended, or that a reasonable person acting in like circumstances would
expect, to have the effect of causing any officer or employee of the
Company, the Bank, or any of their respective subsidiaries or affiliates to
terminate his employment and accept employment or become affiliated with,
or provide services for compensation in any capacity whatsoever to, any
savings xxxx, savings and loan association, bank,
-15-
bank holding company, savings and loan holding company, or other
institution engaged in the business of accepting deposits, making loans or
doing business within the counties specified in section 18;
(c) solicit, provide any information, advice or recommendation or
take any other action intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any customer of
the Company to terminate an existing business or commercial relationship
with the Company.
SECTION 21 NO EFFECT ON EMPLOYEE BENEFIT PLANS OR PROGRAMS.
------------------------------------------------
The termination of the Executive's employment during the term of
this Agreement or thereafter, whether by the Company, by the Bank or by the
Executive, shall have no effect on the rights and obligations of the parties
hereto 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 such other employee benefit plans or
programs, or compensation plans or programs, as may be maintained by, or cover
employees of, the Company or the Bank from time to time; PROVIDED, HOWEVER, that
nothing in this Agreement shall be deemed to duplicate any compensation or
benefits provided under any agreement, plan or program covering the Executive to
which the Company is a party and any duplicative amount payable under any such
agreement, plan or program shall be applied as an offset to reduce the amounts
otherwise payable hereunder.
SECTION 22 SUCCESSORS AND ASSIGNS.
-----------------------
This Agreement will inure to the benefit of and be binding upon the
Executive, his legal representatives and testate or intestate distributees, and
the Company and the Bank and their respective successors and assigns, including
any successor by merger or consolidation or a statutory receiver or any other
person or firm or corporation to which all or substantially all of the assets
and business of the Company may be sold or otherwise transferred. Failure of the
Company to obtain from any successor its express written assumption of the
Company's obligations hereunder at least 60 days in advance of the scheduled
effective date of any such succession shall be deemed a material breach of this
Agreement.
SECTION 23 NOTICES.
--------
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five days after mailing if
mailed; postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
-16-
If to the Executive:
Xxxxxxx X. Xxxxxxxx
If to the Company or the Bank:
Xxxxxx City Bancorp, Inc.
West 00 Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000-0000
Attention: CHAIRMAN, HUMAN RESOURCES COMMITTEE
-----------------------------------
WITH A COPY TO:
Xxxxxxx Xxxxxxxx & Wood
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. XXXXXX XXXXXX, ESQ.
---------------------
SECTION 24 INDEMNIFICATION FOR ATTORNEYS' FEES.
------------------------------------
(a) The Company shall indemnify, hold harmless and defend the
Executive against reasonable costs, including legal fees and expenses, incurred
by him in connection with or arising out of any action, suit or proceeding
(including any tax controversy) in which he may be involved, as a result of his
efforts, in good faith, to defend or enforce the terms of this Agreement. For
purposes of this Agreement, any settlement agreement which provides for payment
of any amounts in settlement of the Company's or the Bank's obligations
hereunder shall be conclusive evidence of the Executive's entitlement to
indemnification hereunder, and any such indemnification payments shall be in
addition to amounts payable pursuant to such settlement agreement, unless such
settlement agreement expressly provides otherwise.
(b) The Company's obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against the Executive or others. In no
event shall the Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to the Executive under
any of the provisions of this Agreement and such amounts shall not be reduced
whether or not the Executive obtains other employment. Unless it is determined
that the Executive has acted frivolously or in bad faith, the Company shall pay
as incurred, to the full extent permitted by law, all legal fees and expenses
which the Executive may reasonably incur as a result of or in connection with
his consultation with legal counsel or arising out of any action, suit,
proceeding, tax controversy or contest (regardless of the outcome thereof) by
the Company, the Executive or others regarding the validity or enforceability
of, or liability under, any
-17-
provision of this Agreement or any guarantee of performance thereof (including
as a result of any contest by the Executive about the amount of any payment
pursuant to this Agreement), plus in each case interest on any delayed payment
at the applicable Federal rate provided for in section 7872(f)(2)(A) of the
Code. This section 24(b) shall apply whether such consultation, action, suit,
proceeding or contest arises before, on, after or as a result of a Change of
Control.
SECTION 25 SEVERABILITY.
-------------
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
SECTION 26 WAIVER.
-------
Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
SECTION 27 COUNTERPARTS.
-------------
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same Agreement.
SECTION 28 GOVERNMENT LAW.
---------------
Except to the extent preempted by federal law, this Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of New Jersey applicable to contracts entered into and to be performed
entirely within the State of New Jersey.
SECTION 29 HEADINGS AND CONSTRUCTION.
--------------------------
The headings of sections in this Agreement axe for convenience of
reference only and are not intended to qualify the meaning of any section. Any
reference to a section number shall refer to a section of this Agreement, unless
otherwise stated.
SECTION 30 ENTIRE AGREEMENT; MODIFICATIONS.
--------------------------------
This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and supersedes in its entirety any and
all prior agreements, understandings or representations relating to the subject
matter hereof. No modifications of this Agreement shall be valid unless made in
writing and signed by the parties hereto.
-18-
SECTION 31 NON-DUPLICATION.
----------------
In the event that the Executive shall perform services for the Bank
or any other direct or indirect subsidiary or affiliate of the Company or the
Bank, any compensation or benefits provided to the Executive by such other
employer shall be applied to offset the obligations of the Company hereunder, it
being intended that this Agreement set forth the aggregate compensation and
benefits payable to the Executive for all services to the Company, the Bank and
all of their respective direct or indirect subsidiaries and affiliates.
SECTION 32 RELATIVE OBLIGATIONS OF THE BANK AND THE COMPANY.
-------------------------------------------------
The Company shall, with respect to the Executive's services
hereunder and the compensation therefor and with respect to any termination of
the Executive's employment, have all of the obligations imposed on the Bank
under this Agreement to the same extent as though the name of the Company were
substituted for the name of the Bank herein and the Executive shall, with
respect to the services hereunder and the compensation therefor and with respect
to any termination of the Executive's employment, have all of the rights,
privileges and duties relative to the Company as though the name of the Company
were substituted for the name of the Bank herein. If the Executive performs
services for both the Bank and the Company, any entitlement of the Executive to
severance compensation and other termination benefits under this Agreement shall
be determined on the basis of the aggregate compensation payable to the
Executive by the Bank and the Company, and liability therefor shall be
apportioned between the Bank and the Company in the same manner as compensation
paid to the Executive for services to each of them; PROVIDED, HOWEVER, that the
Company shall be jointly and severally liable with the Bank for alt obligations
of the Bank under this Agreement; and PROVIDED, FURTHER, that in no event shall
the Bank bear any liability for actions of, or obligations undertaken by, the
Company under this Agreement. It is the intent and purpose of this section 32
that the Executive have the same legal and economic rights that he would have if
all of his services were rendered to and all of his compensation were paid by
the Company. This section 32 shall be construed and enforced to give effect to
such intent and purpose.
SECTION 33 REQUIRED REGULATORY PROVISIONS.
-------------------------------
Notwithstanding anything herein contained to the contrary, any
payments to the Executive by the Company or the Bank, whether pursuant to this
Agreement or otherwise, are subject to and conditioned upon their compliance
with section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C. ss.1828(k),
and any regulations promulgated thereunder.
-19-
IN WITNESS WHEREOF, the Bank and the Company have caused this
Agreement to be executed and the Executive has hereunto set his hand, all as of
the day and year first above written.
---------------------------------
XXXXXXX X. XXXXXXXX
Attest: XXXXXX CITY SAVINGS BANKING
By: By:
----------------------------- -----------------------------
Name: Name:
Title: Title:
[Seal]
Attest: XXXXXX CITY BANCORP, INC.
By: By:
----------------------------- -----------------------------
Name: Name:
Title: Title:
[Seal]
