Exhibit 10.10
EMPLOYMENT AGREEMENT
by and between
PROVIDENT BANK
And
XXXX X. XXXXXX
Made and Entered into as of
January 1, 2004
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Employment Agreement
This Employment Agreement ("Agreement") is made and entered into as of
January 1, 2004, by and between PROVIDENT BANK, a savings bank organized and
existing under the laws of the United States of America and having its executive
offices at 000 Xxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000 ("Bank"), and XXXX X.
XXXXXX ("Executive") having a home address of 0 Xxxxxx Xxxxx, Xxxxxxxxxxxxx, Xxx
Xxxx 00000. Provident Bancorp, Inc. ("Company") is a party to this Agreement for
the sole purpose of guaranteeing the Bank's performance hereunder.
WITNESSETH:
WHEREAS, Executive is currently serving as Senior Vice President and Chief
Financial Officer of the Bank; and
WHEREAS, the Board of Directors of the Bank ("Board") considers the
continued availability of Executive's services to be important to the successful
management and conduct of the Bank's business and desires to secure for itself
the continued availability of his services; and
WHEREAS, for purposes of securing Executive's services for the Bank, the
Board has approved and authorized the execution of the Agreement with Executive
on the terms and conditions set forth herein;
WHEREAS, Executive is willing to continue to make his services available
to the Bank on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and obligations hereinafter set forth, the Bank and Executive hereby agree as
follows:
Section 1. Employment
The Bank hereby agrees to continue the employment of the Executive and the
Executive hereby agrees to continue such employment, during the period and upon
the terms and conditions set forth in this Agreement.
Section 2. Employment Period
(a) Except as otherwise provided in this Agreement to the contrary, the
terms and conditions of this Agreement shall be and remain in effect during the
period of employment ("Employment Period") established under this Section 2. The
Employment Period shall be for a term commencing on the date of this Agreement
and ending on the date as of which Executive's employment with Bank is
terminated for any reason ("Employment Termination Date").
(b) The Bank and Executive acknowledge and agree that Executive is an "at
will" employee of the Bank and that either the Bank (acting through its Board of
Directors or CEO) or Executive may terminate the Agreement, either with or
without cause and with or without prior notice, at anytime. The Bank and
Executive further acknowledge and agree that the Agreement shall not impact upon
the right of either party to terminate the employment relationship, at anytime,
to the same extent as he or it could have done in the absence of the Agreement.
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(c) In the event of the termination of Executive's employment with Bank,
he shall be entitled to those benefits upon termination, and shall be subject to
those terms and conditions, as set forth elsewhere in this Agreement.
Section 3. Duties
The Executive shall: (a) devote his full business time and attention
(other than during weekends, holidays, vacation periods, and periods of illness,
disability or approved leave of absence) to the business and affairs of the Bank
and use his best efforts to advance the Bank's interests; (b) if duly appointed
or elected, serve as Senior Vice President and Chief Financial Officer of the
Bank, or in such other position of equal responsibility and title for which he
is suited based upon his training and experience, and which may be assigned to
him by the CEO; and (c) perform such duties not inconsistent with his title and
office as may be assigned to him by or under the authority of the CEO. The
Executive shall have such authority as is necessary or appropriate to carry out
his assigned duties. The Executive shall be entitled to a minimum of four (4)
weeks of vacation time each year during the Employment Period.
Section 4. Compensation
In consideration for the services rendered by the Executive under this
Agreement, the Bank shall pay to the Executive a salary at an annual rate equal
to the greatest of:
(a) $157,000.00;
(b) such higher annual rate as may be approved by the CEO and prescribed
by or under the authority of the Board;
(c) for each calendar year that begins on or after the date on which a
change in Control Date, as defined in Section 10, occurs, the
product of the Executive's annual rate of salary in effect
immediately prior to such calendar year, multiplied by the greatest
of:
(i) 1.06; or
(ii) the quotient of (A) the average annual rate of salary,
determined as of the first day of such calendar year, of the
officers of the Bank (other than the Executive ) who are
assistant vice presidents or more senior officers, divided by
(B) the average annual rate of salary, determined as of the
first day of the immediately preceding calendar year, of the
officers of the Bank (other than the Executive) who are
assistant vice presidents or more senior officers;
provided, however, that in no event shall the Executive's annual rate of salary
under this Agreement in effect at a particular time be reduced without the
Executive's prior written consent. The annual rate of salary payable under this
Section 4 shall be paid in approximately equal installments in accordance with
the Bank's customary payroll practices.
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Section 5. Employee Benefit Plans and Programs
Except as otherwise provided in this Agreement, the Executive shall,
during the Employment Period, be eligible to participate in and receive benefits
under the Bank's employee benefit plans and programs as it may maintain from
time to time, in accordance with the terms and conditions of such benefit plans
and programs and in accordance with the Bank's customary practices, provided
Executive is a member of the class of employees authorized to participate in
such plans or programs.
Section 6. Outside Activities and Board Memberships
During the term of this Agreement, the Executive shall not, directly or
indirectly, provide services on behalf of any competitive financial
institutions, any insurance company or agency, any mortgage or loan broker or
any other competitive entity or on behalf of any subsidiary or affiliate of any
such competitive entity, as an employee, consultant, independent contractor,
agent, sole proprietor, partner, joint venturer, corporate officer or director;
nor shall the Executive acquire by reason of purchase during the term of this
Agreement the ownership of more than 5% of the outstanding equity interest in
any such competitive entity. In addition, during the term of this Agreement, the
Executive shall not, directly or indirectly, acquire a beneficial interest, or
engage in any joint venture in real estate with the Bank. Subject to the
foregoing, and to the Executive's right to continue to serve as an officer
and/or director or trustee of any business organization as to which he was so
serving on the effective date of this Agreement, the Executive may serve on
boards of directors of unaffiliated corporations, subject to approval of the
CEO, which approval shall not be unreasonably withheld, and such services shall
be presumed for these purposes to be for the benefit of the Bank. Except as
specifically set forth herein, the Executive may engage in personal business and
investment activities, including real estate investments and personal
investments in the stocks, securities and obligations of other financial
institutions. Notwithstanding the foregoing, in no event shall the Executive's
outside activities, services, personal business and investments materially
interfere with the performance of his duties under this Agreement.
Section 7. Working Facilities and Expenses
The Executive's principal place of employment shall be at the Bank's
principal executive office at the address first above written, or at such other
office of the Bank as the CEO deems to be in the best interest of the Bank, or
at such other location upon which the CEO and the Executive may mutually agree.
The Bank shall reimburse the Executive for his ordinary and necessary business
expenses and travel and entertainment expenses, incurred in connection with the
performance of his duties under this Agreement, upon presentation to the Bank of
an itemized account of such expenses in such form as the Bank may reasonably
require.
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Section 8. Termination of Employment with Bank Liability
(a) In the event that the Executive's employment with the Bank shall
terminate on account of:
(i) The Executive's voluntary resignation from employment with the
Bank within thirty (30) days following:
(A) a material change in Executive's functions, duties, or
responsibilities, which change would cause Executive's
position to become one of lesser responsibility,
importance, or scope, which the Bank fails to cure
within thirty (30) days following written notice thereof
from the Executive;
(B) liquidation or dissolution of the Bank or the Company
other than liquidations or dissolutions that are caused
by reorganizations that do not affect the status of the
Executive;
(C) a material breach of this Agreement by the Bank, which
the Bank fails to cure within thirty (30) days following
written notice thereof from the Executive; or
(D) a Change in Control Date of the Bank as defined in
Section 10; or
(ii) the discharge of the Executive by the Bank for any reason
other than for "Cause" as defined in Section 9(a); or
(iii) the termination of the Executive's employment with the Bank as
a result of the Executive's "total and permanent disability"
which, for purposes of this Agreement, shall apply only if the
CEO acting in good faith determines that, based upon competent
and independent medical evidence presented by a physician or
physicians agreed upon by the parties, the Executive's
physical or mental condition is such that he is totally and
permanently incapable of engaging in any substantial gainful
employment based upon his education, training and experience;
then the Bank shall provide the benefits and pay to the Executive the amounts
provided for under Section 8(b).
(b) Upon the termination of the Executive's employment with the Bank under
circumstances described in Section 8(a) of this Agreement, the Bank shall pay
and provide or credit to the Executive (or, in the event of his death, to his
surviving spouse or such other beneficiary as the Executive may designate in
writing, or if there is neither, to his estate):
(i) his earned but unpaid salary as of the Employment Termination
Date;
(ii) the benefits, if any, to which he is entitled as a former
employee under the Bank's employee benefit plans and
programs;
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(iii) continued group, life, health (including hospitalization,
medical and major medical), prescription drug, dental, short
and long term disability insurance benefits, in addition to
those provided pursuant to Section 8(b)(ii), if and to the
extent necessary to provide the Executive, for a period of
one (1) year from the Employment Termination Date, coverage
equivalent to the coverage to which he would have been
entitled if he had continued working for one (1) year from
the Employment Termination Date at his salary at in effect on
the Employment Termination Date. To the extent applicable,
such continuation coverage shall be conditioned upon
Executive's timely election of COBRA continuation coverage
effective as of the Employment Termination Date and timely
payment of the portion of the cost of such coverage as is
then required to be paid by the Bank's active employees
employed at the same level as the Executive. In addition, and
notwithstanding any other provision of this Agreement to the
contrary, in no event shall the period of continuation
coverage or the Bank's obligation to provide or pay for any
portion of such coverage, extend beyond the maximum period of
continuation coverage provided for upon employment
termination under COBRA.
(iv) within thirty (30) days of the Employment Termination Date, a
lump sum payment, as liquidated damages, in an amount equal
to the present value of the salary that the Executive would
have earned (but offset by any payments made under any
short-term or long-term disability plan or program maintained
by the Bank) if he had continued working for the Bank for one
(1) year from the Employment Termination Date at the highest
annual rate of salary achieved by the Executive during the
Employment Period, where such present value shall be
determined using a discount rate equal to the "Current Prime
Rate" as in effect on the Employment Termination Date, as
determined by the Federal Reserve and published by the Wall
Street Journal (the "Discount Rate"), and to be payable
without proof of damages and without regard to the
Executive's efforts, if any, to mitigate damages;
(v) within sixty (60) days of the Employment Termination Date, a
lump sum payment in an amount equal to the present value of
the additional lump sum payment which is actuarially
equivalent to the additional benefit Executive would have
accrued under any defined benefit pension plan then
maintained by the Bank which is intended to be income tax
qualified, if he had continued working for the Bank for one
(1) year from the Employment Termination Date at the highest
annual rate of salary achieved by the Executive during the
Employment Period. The present value of the actuarial
equivalent of the additional lump sum benefit Executive would
have accrued shall be determined utilizing the Discount Rate
and shall be increased by an amount necessary to satisfy any
federal, state and local income taxes and Medicare taxes
which become due as a result of such payment, in accordance
with Section 8(d) below;
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(vi) within sixty (60) days of the Employment Termination Date, a
lump sum payment in an amount equal to the present value of
the Bank's contributions that would have been made on
Executive's behalf under any defined contribution plan then
maintained by the Bank which is intended to be income tax
qualified, if he had continued working for the Bank for one
(1) year from the Employment Termination Date at the highest
annual rate of salary achieved by the Executive during the
Employment Period (assuming, if a Change-in-Control, as
defined in Section 10 has occurred, that the annual salary
increases under Section 4(c)(i) would apply), and making the
maximum amount of employee contributions permitted if any
under such plans. The present value of the lump sum payment
determined above shall be determined using the Discount Rate
and shall be increased by an amount necessary to satisfy any
federal, state and local income taxes and Medicare taxes
which become due as a result of such payment, in accordance
with Section 8(d) below;
(vii) within sixty (60) days of the Employment Termination Date, a
lump sum payment in an amount equal to the present value of
the additional benefits or contributions which Executive
would have accrued or which would have been made by the Bank
on his behalf under the Supplemental Executive Retirement
Plan (and any other excess benefit plan within the meaning of
Section 3(36) of the Employment Retirement Income Security
Act of 1974, as amended, or any other deferred compensation
plans for management or highly compensated employees that are
maintained by the Bank and are not intended to be income tax
qualified), if he had continued working for the Bank for one
(1) year from the Employment Termination Date at the highest
rate of salary achieved by the Executive during the
employment period, (assuming, if a Change in Control, as
defined in Section 10 has occurred, that the annual salary
increases under Section 4(c)(i) would apply). The present
value of the additional lump sum payment determined above
shall be determined utilizing the Discount Rate and shall
increased by an amount necessary to satisfy any federal,
state and local income taxes and Medicare taxes which become
due as a result of such payment, in accordance with Section
8(d) below; and
(viii) within sixty (60) days of the Employment Termination Date, a
lump sum payment in an amount equal to one times the average
of the prior two years incentive compensation earned or
received by him under all incentive compensation plans or
programs adopted and maintained by the Bank which are in
effect on the Employment Termination Date.
(c) Notwithstanding the foregoing, upon the termination of the Executive's
employment with the Bank under circumstances described in Section 8(a)(i)(D) of
this Agreement, the Bank shall pay and provide or credit to the Executive (or in
the event of his death, to his surviving spouse or such other beneficiary as the
Executive may designate in writing, or if there is neither, to his estate), a
benefit determined under Sections 8(b)(iii) through 8(b)(viii) as if Executive
had continued
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working for the Bank for two (2) years, rather than one (1) year, from the
Employment Termination Date.
(d) In the event that the Executive becomes entitled to a benefit under
Sections 8(b)(v), (vi) or (vii) (collectively, the "Retirement Plan Replacement
Benefit"), the Bank shall pay the Executive an additional payment under such
Sections, as set forth therein, in order to compensate for the additional income
and Medicare taxes that become due and owing as a result of such Retirement Plan
Replacement Benefit. The additional amount; subject to applicable withholding
requirements under state or federal a law, shall equal:
(i) the sum of the highest marginal federal, state and local income
tax rate and Medicare tax rate multiplied by the Retirement Plan
Replacement Benefit, and
(ii) such additional amount (tax allowance) as may be necessary to
compensate the Executive for the payment by the Executive of federal,
state and local income taxes and Medicare taxes on the payment provided
under Clause (i) and on any payments under this Clause (ii). In computing
such tax allowance, the payments to be made under Clause (i) shall be
multiplied by the "gross up percentage" ("GUP"). The GUP shall be
determined as follows:
Tax Rate
GUP =-----------------
1 - Tax Rate
The "Tax Rate" for purposes of computing the GUP shall be the highest
marginal federal, state and local income tax rate and the highest Medicare
tax rate, applicable to the Executive in the year in which the payment
made under Clause (i) is made.
(e) Notwithstanding the foregoing, to the extent required by regulations
or interpretations of the Office of Thrift Supervision, all payments under the
Agreement shall not exceed three times the Executive's average annual
compensation over the most recent five taxable years. The Bank and the Executive
hereby stipulate that the damages which may be incurred by the Executive
following any such termination of employment are not capable of accurate
measurement as of the date first written and that such liquidated damages
constitute reasonable damages under the circumstances.
Section 9. Termination without Additional Bank Liability
(a) The CEO may terminate the Executive's employment at anytime, but any
termination by the CEO other than termination for "cause," as defined herein,
shall not prejudice the Executive's right to compensation or other benefits
under the Agreement. The Executive shall have no right to receive compensation
or other benefits for any period after termination for "cause." Termination for
"cause" shall include termination because of the Executive's personal
dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful violation
of any law, rule or regulation (other than routine traffic violations or similar
offenses) or final cease-and-desist order, or material breach of any provision
of the contract.
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Termination for "cause" shall be determined by the CEO, acting in good
faith with respect to such termination.
For purposes of this Section 9, 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 either pursuant to
direction of the CEO, a resolution duly adopted by the 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) In the event that the Executive's employment with the Bank shall
terminate during the Employment Period on account of:
(i) The Executive's voluntary resignation from employment with the
Bank for reasons other than those specified in Section
8(a)(i); or
(ii) The Executive's death;
then the Bank shall have no further obligations under this Agreement, other than
the payment to the Executive of his earned but unpaid salary as of the
Employment Termination Date, and the provision of such benefits, if any, to
which he is entitled (to the same extent as he would be entitled in the Absence
of this Agreement), as a former employee under the Bank's employee benefit plans
and programs.
Section 10. Change in Control
(a) For purposes of this Agreement, the term "Change in Control" shall
mean a change in control of a nature that: (i) would be required to be reported
in response to Item 1(a) of the current report on Form 8-K, as in effect on the
date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange Act of
0000 (xxx "Xxxxxxxx Xxx"); or (ii) results in a Change in Control of the Bank or
the Company within the meaning of the Home Owners Loan Act, as amended ("HOLA"),
and applicable rules and regulations promulgated thereunder, as in effect at the
time of the Change in Control; or (iii) without limitation such a Change in
Control shall be deemed to have occurred at such time as (a) any "person" (as
the term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes
the "beneficial owner"(as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing 25% or more of
the combined voting power of Company's outstanding securities except for any
securities purchased by the Bank's employee stock ownership plan or trust; or
(b) individuals who constitute the Board on the date hereof (the "Incumbent
Board") cease for any reason to constitute at least a majority thereof, provided
that any person becoming a director subsequent to the date hereof whose election
was approved by a vote of at least three-quarters of the directors comprising
the Incumbent Board, or whose nomination for election by the Company's
stockholders was approved by the same Nominating Committee serving under an
Incumbent Board, shall be, for purposes of this clause (b), considered as though
he was a member of the Incumbent Board; or (c) a plan of reorganization, merger,
consolidation, sale of all or substantially all the assets of the Bank or the
Company or similar transaction in which the Bank or Company is not the surviving
institution occurs; or (d) a proxy statement soliciting proxies from
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stockholders of the Company, by someone other than the current management of the
Company, seeking stockholder approval of a plan of reorganization, merger or
consolidation of the Company or similar transaction with one or more
corporations as a result of which the outstanding shares of the class of
securities then subject to the plan are to be exchanged for or converted into
cash or property or securities not issued by the Company; or (e) a tender offer
is made for 25% or more of the voting securities of the Company and the
shareholders owning beneficially or of record 25% or more of the outstanding
securities of the Company have tendered or offered to sell their shares pursuant
to such tender offer and such tendered shares have been accepted by the tender
offeror.
(b) For purposes of this Agreement, the term "Change in Control Date"
shall mean the first date during the Employment Period on which a Change in
Control occurs. Anything in this Agreement to the contrary notwithstanding, if
the Executive's employment with the Bank is terminated and if it is reasonably
demonstrated by the Executive that such termination of Employment (i) was at the
request of a third party who has taken steps reasonably calculated to effect a
Change in Control or (ii) otherwise arose in connection with or anticipation of
a Change in Control, then for all purposes of this Agreement the "Change in
Control Date" shall mean the date immediately prior to the date of such
termination of employment.
Section 11. Covenant Not To Compete
The Executive hereby covenants and agrees that for a period of one (1)
year following the Employment Termination Date, he shall not, without the
written consent of the CEO, become an officer, employee, consultant, director,
independent contractor, agent, sole proprietor, partner or trustee of any
savings bank, savings and loan association, savings and loan holding company,
bank or bank holding company, insurance company or agency, any mortgage or loan
broker or any other entity competing with the Bank or its affiliates if such
position entails working in (or providing services in) Rockland, Orange, Ulster
or Xxxxxxxx Counties; provided, however, that this Section 11 shall not apply,
if the Executive's employment is terminated for the reasons set forth in Section
8(a) hereof.
Section 12. Additional Termination and Suspension Provisions
(a) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act, as amended (12
U.S.C. 1818(e)(3) and (g)(1)), all obligations of the Bank 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 Bank may in its
discretion (i) pay the Executive all of the compensation withheld while the
Bank's obligations under this Agreement were suspended and (ii) reinstate (in
whole) any of the Bank's obligations which were suspended, and in exercising
such discretion, the Bank shall consider the facts and make a decision promptly
following such dismissal of charges and act in good faith in deciding whether to
pay any withheld compensation to the Executive and to reinstate any suspended
obligations of the Bank.
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(b) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act, as amended (12
U.S.C. 1818 (e)(4) or (g)(1)), all obligations of the Bank under this Agreement
shall terminate as of the effective date of the order, but vested rights of the
parties shall not be affected.
(c) If the Bank is in default, as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act, as amended (12 U.S.C. 1813 (x)(l)), all
obligations under this Agreement shall terminate as of the date of default, but
this provision shall not affect any vested rights of the parties.
(d) All obligations under this Agreement shall be terminated, except to
the extent determined that continuation of this Agreement is necessary for the
continued operation of the Bank, (i) by the Director of the OTS (the "Director")
or his or her designee, at the time the FDIC enters into an agreement to provide
assistance to or on behalf of the Bank under the authority contained in Section
13(c) of the Federal Deposit Insurance Act, as amended; or (ii) by the Director
or his or her designee, at the time the Director or his designee approves a
supervisory merger to resolve problems related to operation of the Bank or when
the Bank is determined by the Director to be in an unsafe or unsound condition.
Any rights of the parties that have already vested, however, shall not be
affected by such action.
(e) If any regulation applicable to the Bank shall hereafter be adopted,
amended or modified, or if any new regulation applicable to the Bank and
effective after the date of this Agreement:
(i) shall require the inclusion in this Agreement of a provision
not presently included in this Agreement, then the foregoing
provisions of this Section 12 shall be deemed amended to the
extent necessary to give effect in this Agreement to any such
amended, modified or new regulation; and
(ii) shall permit the exclusion of a limitation in this Agreement
on the payment to the Executive of an amount or benefit
provided for presently in this Agreement, then the foregoing
provisions of this Section 12 shall be deemed amended to the
extent permissible to exclude from this Agreement any such
limitation previously required to be included in this
Agreement by a regulation prior to its amendment, modification
or repeal.
Section 13. No Effect on Employee Benefit Plans or Programs
Except as expressly provided in this Agreement, the termination of the
Executive's employment during the term of this Agreement or thereafter, whether
by the Bank or by the Executive, shall have no effect on the rights and
obligations of the parties hereto under the Bank's employee benefit plans and
programs as it may maintain from time to time.
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Section 14. Successors and Assigns
This Agreement will inure to the benefits of and be binding upon the
Executive, his legal representatives and estate and intestate distributes, and
the Bank, its successors and assigns, including any successor by merger or
consolidation or conversion to stock form 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 Bank may be sold or otherwise transferred. Any such
successor of the Bank shall be deemed to have assumed this Agreement and to have
become obligated hereunder to the same extent as the Bank, and the Executive's
obligations hereunder shall continue in favor of such successor.
Section 15. Notices
Any communication to a party required or permitted 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 received by overnight carrier, 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:
If to the Executive:
Xxxx X. Xxxxxx
0 Xxxxxx Xxxxx
Xxxxxxxxxxxxx, XX 00000
If to the Bank:
Provident Bank
000 Xxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: President and Chief Executive Officer
With a copy to:
Greenbaum, Rowe, Xxxxx, Xxxxx, Xxxxx & Xxxxxx LLP
00 Xxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Section 16. Settlement, Indemnification and Attorney's Fees
(a) The Bank'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 Bank 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.
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(b) If a dispute arises under this Agreement in which one party seeks to
enforce its rights, the prevailing party shall be awarded reasonable attorney's
fees, together with any costs and expenses, to resolve the dispute and to
enforce the final judgment. All fees awarded must be based on that party's
pursuit of issues contested by the other party. Fees may not be awarded to a
party for work which is either not pursued by the party through award or
settlement, or which is not contested by the other party.
(c) The Bank shall indemnify, hold harmless and defend the Executive for
all acts or omissions taken or not taken by him in good faith while performing
services for the Bank to the same extent and upon the same terms and conditions
as other similarly situated officers and directors of the Bank. If and to the
extent that the Bank maintains, at any time during the Employment Period, an
insurance policy covering the other officers and directors of the Bank against
lawsuits, the Bank shall use its best efforts to cause the Executive to be
covered under such policy upon the same terms and conditions as other similarly
situated officers and directors.
Section 17. 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 18. Waiver
Failure to insist upon strict compliance with any 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 or 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 19. Counterparts
This Agreement maybe 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 20. Governing Law
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York, without reference to
conflicts of law principles, except to the extent governed by federal law in
which case federal law shall govern.
Section 21. Headings and Construction
The headings of sections in this Agreement are 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 specified.
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Section 22. 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.
Section 23. Source of Payments
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank. The Company, however, guarantees
payment and provision of all amounts and benefits due hereunder to Executive
and, if such amounts and benefits due from the Bank are not timely paid or
provided by the Bank, such amounts and benefits shall be paid or provided by the
Company.
Section 24. Compliance with Law
Any payments made to the Executive pursuant to this Agreement, or
otherwise are subject to and conditioned upon their compliance with 12 U.S.C.
1828(i) and any regulations promulgated thereunder.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the Bank and Company have each caused this Agreement
to be executed and the Executive has hereunto set his hand, all as of the day
and year first above written.
WITNESS EXECUTIVE
\s\ Xxxx X. Xxxxxx
----------------------------------------- ---------------------------------
(Name) Xxxx X. Xxxxxx
ATTEST: PROVIDENT BANK
By: \s\ Xxxxxx Xxxxxxxxx By: \s\ Xxxxxx Xxxxxxxx
------------------------------------- -----------------------------
Xxxxxx Xxxxxxxxx, Corporate Secretary Xxxxxx Xxxxxxxx, President
[Seal] and Chief Executive Officer
ATTEST: PROVIDENT BANCORP, INC.
By: \s\ Xxxxxx Xxxxxxxxx By: \s\ Xxxxxx Xxxxxxxx
------------------------------------- -----------------------------
Xxxxxx Xxxxxxxxx, Corporate, Secretary Xxxxxx Xxxxxxxx, President
[Seal] and Chief Executive Officer
STATE OF NEW YORK :
: ss
COUNTY OF ROCKLAND :
On this ____ day of ______________, 2004, before me personally came Xxxx
X. Xxxxxx, to me known, and known to me to be the individual described in the
foregoing instrument, who, being by me duly sworn, did depose and say that he
resides at the address set forth in said instrument, and that he signed his name
to the foregoing instrument.
---------------------------------
Notary Public
STATE OF NEW YORK :
: ss
COUNTY OF ROCKLAND :
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On this ____ day of ______________, 2004, before me personally came Xxxxxx
Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
resides at 000 Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxxx, Xxx Xxxx 00000; that he is a
member of the Board of Directors of PROVIDENT BANK, the savings bank described
in and which executed the foregoing instrument; that he knows the seal of said
savings bank; that the seal affixed to said instrument is such seal; that it was
so affixed by authority of the Board of Directors of said savings bank; and that
he signed his name thereto by like authority.
---------------------------------
Notary Public
STATE OF NEW YORK :
: ss
COUNTY OF ROCKLAND :
On this _____ day of ______________, 2004, before me personally came
Xxxxxx Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say
that he resides at 000 Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxxx; Xxx Xxxx 00000; that he
is a member of the Board of Directors of PROVIDENT BANCORP, INC., the holding
company described in and which executed the foregoing instrument; that he knows
the seal of said holding company; that the seal affixed to said instrument is
such seal; that it was so affixed by authority of the Board of Directors of said
holding company; and that he signed his name thereto by like authority.
---------------------------------
Notary Public
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