Exhibit 10.3
CHANGE IN CONTROL AGREEMENT
This AGREEMENT is made effective as of March 9 ,1997, by and
among GREENPOINT FINANCIAL CORP. (the "Holding Company"), a corporation
organized under the laws of the State of Delaware, GREENPOINT BANK (the "Bank"),
a New York chartered savings bank, each with offices at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, and XXXXXXX X. XXXXXXXXXX ("Executive").
WHEREAS, the Holding Company (formerly known as GP Financial
Corp.), the Bank (formerly known as The Green Point Savings Bank) and Executive
entered into an Employment Agreement dated as of the 10th day of May, 1994 (the
"Employment Agreement"); and
WHEREAS, the Holding Company, the Bank and Executive now
desire to terminate the Employment Agreement and in lieu thereof enter into
this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual
covenants herein set forth and other good and valuable consideration, the
Holding Company, the Bank and Executive hereby agree as follows:
1. TERMINATION OF EMPLOYMENT AGREEMENT.
Executive, the Holding Company and the Bank hereby terminate
the Employment Agreement and enter into this Agreement and agree that
Executive, the Holding Company and the Bank have no rights and are released
from any obligations under the Employment Agreement.
2. TERM OF AGREEMENT.
The term of this Agreement shall be deemed to have commenced
as of the date first above written and shall continue for a period of
thirty-six (36) full calendar months thereafter. Commencing on the first
anniversary date of this Agreement and continuing at each anniversary date
thereafter, the Agreement shall renew for an additional year such that the
term shall be three (3) years unless written notice is provided to the
Executive at least ten (10) days and not more than twenty (20) days prior to
any such anniversary date, that this Agreement shall cease at the end of the
thirty-six (36) months following such anniversary date. Prior to the written
notice period for nonrenewal, the Board of Directors of the Holding Company
("Board") will conduct a formal performance evaluation of the Executive for
purposes of determining whether to extend this Agreement, and the results
thereof shall be included in the minutes of the Board's meeting.
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3. PAYMENTS TO EXECUTIVE UPON CHANGE IN CONTROL.
(a) Upon the occurrence of a Change in Control as defined in
Section 3(b) hereof, followed at any time during the term of this Agreement
by the voluntary (under the circumstances described in the next sentence) or
involuntary termination of Executive's employment, other than for Termination
for Cause, as defined in Section 3(c) hereof, the provisions of Section 4 and
Section 5 shall apply. Upon the occurrence of a Change in Control, Executive
shall have the right to elect to voluntarily terminate his employment at any
time during the term of this Agreement following any demotion, loss of title,
office or significant authority, reduction in his annual compensation or
benefits, relocation of his principal place of employment by more than 50
miles from its location immediately prior to the Change in Control, or
failure to continue in effect any vacation benefits, pension plan, life
insurance plan, health, accident or disability plan in which Executive is
participating immediately prior to the Change in Control.
(b) For purposes of this Agreement, a "Change in Control" shall
mean:
(i) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
20% or more of either (A) the then outstanding shares of common stock of
the Holding Company (the "Outstanding Company Common Stock") or (B) the
combined voting power of the then outstanding voting securities of the
Holding Company entitled to vote generally in the election of directors
(the "Outstanding Company Voting Securities"); provided, however, that for
purposes of this subsection (i), the following acquisitions shall not
constitute a Change in Control: (A) any acquisition directly from the
Holding Company, (B) any acquisition by the Holding Company, (C) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Holding Company or any corporation controlled by the
Holding Company or (D) any acquisition by any corporation pursuant to a
transaction which complies with clauses (A), (B) and (C) of subsection
(iii) of this Section 3(b); or
(ii) individuals who, as of the date hereof, constitute the Board of
Directors of the Holding Company (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board; provided, however,
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that any individual becoming a director subsequent to the date hereof
whose election, or nomination for election by the Holding Company's
shareholders, was approved by a vote of at least a majority of the direc
tors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board; or
(iii) consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Holding Company (a "Business Combination"), in each case, unless,
following such Business Combination, (A) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 50% of, respectively, the then
outstanding shares of common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting
from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Holding Company
or all or substantially all of the Holding Company's assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business
Combination of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be, (B) no Person (excluding
any employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership
existed prior to the Business Combination and (C) at least a majority of
the members of the board of directors of the corporation resulting from
such Business Combination were members of the Incumbent Board at the time
of the execution of
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the initial agreement, or of the action of the Board, providing for such
Business Combination; or
(iv) approval by the shareholders of the Holding Company of a complete
liquidation or dissolution of the Holding Company.
(c) Executive shall not have the right to receive termination
benefits pursuant to Section 4 and certain additional payments pursuant to
Section 5 hereof upon Termination for Cause. The term "Termination for Cause"
shall mean termination because of a material loss to the Holding Company, the
Bank or one of their affiliates caused by the Executive's personal dishonesty,
willful misconduct, any breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of any law,
rule, regulation (other than traffic violations or similar offenses) or final
cease and desist order, or any material breach of this Agreement. For purposes
of this Section, no act, or the failure to act, on Executive's part shall be
"willful" unless done, or omitted to be done, not in good faith and without
reasonable belief that the action or omission was in the best interest of the
Holding Company, the Bank or their affiliates. Notwithstanding the foregoing,
Executive shall not be deemed to have been terminated for Termination for Cause
unless and until there shall have been delivered to him a Notice of Termination
(as defined in Section 6(a)) which shall include a copy of a resolution duly
adopted by the affirmative vote of not less than two-thirds of the members of
the Board at a meeting of the Board called and held for that purpose (after
reasonable notice to Executive and an opportunity for him, together with
counsel, to be heard before the Board), finding that in the good faith opinion
of the Board, Executive was guilty of conduct justifying Termination for Cause
and specifying the particulars thereof in detail. The Executive shall not have
the right to receive compensation or other benefits for any period after
Termination for Cause. Any stock options and limited rights granted to Executive
under any stock option plan or any unvested awards granted to Executive under
any recognition and retention plan of the Bank, the Holding Company or any
affiliate thereof, shall become null and void effective upon Executive's receipt
of Notice of Termination and shall not be exercisable by Executive at any time
subsequent to such Termination for Cause.
4. TERMINATION BENEFITS.
(a) The Holding Company shall pay to the Executive in a lump sum
in cash within 30 days after the Date of Termination (as defined in Section
6(b)) the aggregate of the following amounts:
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(i) the sum of (A) the Executive's annual base salary through the
Date of Termination to the extent not theretofore paid, (B) the product of
(x) the higher of (I) the maximum bonus pursuant to the Holding Company's
annual incentive plans and (II) the annual bonus paid or payable pursuant
to the Holding Company's annual incentive plans, including any bonus or
portion thereof which has been earned but deferred (and annualized for any
fiscal year consisting of less than twelve full months or during which the
Executive was employed for less than twelve full months), for the most
recently completed fiscal year during the term of this Agreement, if any
(such higher amount being referred to as the "Highest Annual Bonus") and
(y) a fraction, the numerator of which is the number of days in the
current fiscal year through the Date of Termination, and the denominator
of which is 365 and (C) any compensation previously deferred by the
Executive (together with any accrued interest or earnings thereon) and any
accrued vacation pay, in each case to the extent not theretofore paid; and
(ii) the amount equal to the product of (A) three and (B) the sum of
(x) the Executive's annual base salary and (y) the Highest Annual Bonus;
and
(iii) an amount equal to the difference between (A) the actuarial
equivalent of the benefit (utilizing actuarial assumptions no less
favorable to the Executive than those in effect under the Holding
Company's qualified defined benefit retirement plan (the "Retirement
Plan"))under the Retirement Plan immediately prior to the Effective Date
(as defined in Section 6(c)), and any excess or supplemental retirement
plan in which the Executive participates (together, the "SERP") which the
Executive would receive if the Executive's employment continued for three
years after the Date of Termination assuming for this purpose that all
accrued benefits are fully vested, and, assuming that the Executive's
compensation in each of the three years is the sum of Executive's annual
base salary and the maximum bonus pursuant to the Holding Company's annual
incentive plans, and (B) the actuarial equivalent of the Executive's
actual benefit (paid or payable), if any, under the Retirement Plan and
the SERP as of the Date of Termination.
(b) for three years after the Executive's Date of Termination, or
such longer period as may be provided by the terms of the appropriate plan,
program, practice or policy, the Holding Company shall continue benefits to the
Executive and/or
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the Executive's family at least equal to those which would have been provided to
them in accordance with the plans, programs, practices and policies of the
Holding Company if the Executive's employment had not been terminated or, if
more favorable to the Executive, as in effect generally at any time thereafter
with respect to other peer executives of the Holding Company and its affiliated
companies and their families; provided, however, that if the Executive becomes
reemployed with another employer and is eligible to receive medical or other
welfare benefits under an other employer-provided plan, the medical and other
welfare benefits described herein shall be secondary to those provided under
such other plan during such applicable period of eligibility. For purposes of
determining eligibility (but not the time of commencement of benefits) of the
Executive for retiree benefits pursuant to such plans, practices, programs and
policies, the Executive shall be considered to have remained employed until
three years after the Date of Termination and to have retired on the last day of
such period;
(c) the Holding Company shall, at its sole expense as incurred,
provide the Executive with outplacement services the scope and provider of
which shall be selected by the Executive in his reasonable discretion; and
(d) to the extent not theretofore paid or provided, the Holding
Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is entitled
to receive under any plan, program, policy or practice or contract or agreement
of the Holding Company and its affiliated companies.
5. CERTAIN ADDITIONAL PAYMENTS.
(a) Anything in this Agreement to the contrary notwithstanding,
in the event it shall be determined that any payment or distribution by the
Holding Company to or for the benefit of the Executive (whether paid or payable
or distributed or distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this Section 5) (a "Payment") would be subject to the excise tax imposed
by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"),
or any interest or penalties are incurred by the Executive with respect to such
excise tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then the Executive
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Executive of all taxes and net of any
benefits that result from the deductibility by the Executive of such taxes
(including, in each case, any interest or penalties imposed with respect to such
taxes), including, without
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limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
(b) Subject to the provisions of Section 5(c), all determinations
required to be made under this Section 5, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by Price
Waterhouse LLP or such other certified public accounting firm as may be
designated by the Executive (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Holding Company and the Executive within 15
business days of the receipt of notice from the Executive that there has been a
Payment, or such earlier time as is requested by the Holding Company. In the
event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change in Control, the Executive shall
appoint another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Holding Company. Any Gross-Up Payment, as determined
pursuant to this Section 5, shall be paid by the Holding Company to the
Executive within five days of the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
the Holding Company and the Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Holding Company should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Holding Company exhausts its remedies pursuant
to Section 5(c) and the Executive thereafter is required to make a payment of
any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid
by the Holding Company to or for the benefit of the Executive.
(c) The Executive shall notify the Holding Company in writing of
any claim by the Internal Revenue Service that, if successful, would require the
payment by the Holding Company of the Gross-Up Payment. Such notification shall
be given as soon as practicable but no later than ten business days after the
Executive is informed in writing of such claim and shall apprise the Holding
Company of the nature of such claim and the date on which such claim is
requested to be paid. The Executive shall not pay such claim prior to the
expiration of the 30-day period following the date on which it gives such notice
to the Holding
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Company (or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Holding Company notifies the
Executive in writing prior to the expiration of such period that it desires to
contest such claim, the Executive shall:
(i) give the Holding Company any information reasonably requested by
the Holding Company relating to such claim,
(ii) take such action in connection with contesting such claim as
the Holding Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect
to such claim by an attorney reasonably selected by the Holding Company,
(iii) cooperate with the Holding Company in good faith in order to
effectively contest such claim, and
(iv) permit the Holding Company to participate in any proceedings
relating to such claim;
provided, however, that the Holding Company shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 5(c), the Holding Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Executive to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner, and the Executive agrees
to prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Holding Company shall determine; provided, however, that if the Holding Company
directs the Executive to pay such claim and xxx for a refund, the Holding
Company shall advance the amount of such payment to the Executive, on an
interest-free basis and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and further provided
that any extension of the statute of limitations relating to payment of taxes
for the taxable year of the Executive with respect to which such contested
amount is claimed to be due is
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limited solely to such contested amount. Furthermore, the Holding Company's
control of the contest shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder and the Executive shall be entitled
to settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced
by the Holding Company pursuant to Section 5(a) or 5(c), the Executive becomes
entitled to receive any refund with respect to such claim, the Executive shall
(subject to the Holding Company's complying with the requirements of Section
5(c)) promptly pay to the Holding Company the amount of such refund (together
with any interest paid or credited thereon after taxes applicable thereto). If,
after the receipt by the Executive of an amount advanced by the Holding Company
pursuant to Section 5(c), a determination is made that the Executive shall not
be entitled to any refund with respect to such claim and the Holding Company
does not notify the Executive in writing of its intent to contest such denial of
refund prior to the expiration of 30 days after such determination, then such
advance shall be forgiven and shall not be required to be repaid and the amount
of such advance shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid.
6. NOTICE OF TERMINATION.
(a) Any purported termination by the Holding Company, or by the
Executive shall be communicated by Notice of Termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
written notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated.
(b) "Date of Termination" shall mean the date specified in the
Notice of Termination which, in the instance of Termination for Cause, shall be
immediate.
(c) "Effective Date" shall mean the first date after the date
hereof on which a Change in Control occurs. Anything in this Agreement to the
contrary notwithstanding, if a Change in Control occurs and if the Executive's
employment with the Holding Company is terminated prior to the date on which the
Change in Control occurs, 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
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for all purposes of this Agreement the "Effective Date" shall mean the date
immediately prior to the date of such termination of employment.
7. SOURCE OF PAYMENTS.
It is intended by the parties hereto that all payments provided
in this Agreement shall be paid in cash or check from the general funds of the
Bank. The Bank, however, unconditionally guarantees payment and provision of all
amounts and benefits due hereunder to the 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 and provided by the Holding Company.
8. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
This Agreement contains the entire understanding between the
parties hereto and supersedes any prior agreement among the Holding Company, the
Bank and Executive, including the Employment Agreement, except that this
Agreement shall not affect or operate to reduce any benefit or compensation
inuring to Executive of a kind elsewhere provided. No provision of this
Agreement shall be interpreted to mean that Executive is subject to receiving
fewer benefits than those available to him without reference to this Agreement.
Nothing in this Agreement shall confer upon the Executive the
right to continue in the employ of the Bank or shall impose on the Holding
Company, the Bank or their affiliates any obligation to employ or retain the
Executive in their employ for any period.
9. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the
benefit of, Executive, the Holding Company, the Bank and their respective
successors and assigns.
10. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
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(b) No term or condition of this Agreement shall be deemed to
have been waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
11. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part
of any provision, is held invalid, such invalidity shall not affect any other
provision of this Agreement or any part of such provision not held so invalid,
and each such other provision and part thereof shall to the full extent
consistent with law continue in full force and effect.
12. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included
solely for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
13. GOVERNING LAW.
The validity, interpretation, performance, and enforcement of
this Agreement shall be governed by the laws of the State of Delaware.
14. ARBITRATION.
Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by arbitration, conducted before a
panel of three arbitrators sitting in a location selected by the Executive
within fifty (50) miles from the location of the Holding Company, in accordance
with the rules of the American Arbitration Association then in effect. Judgment
may be entered on the arbitrator's award in any court having jurisdiction;
provided, however, that Executive shall be entitled to seek specific performance
of his right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
15. INDEMNIFICATION AND ATTORNEYS' FEES.
(a) The Holding Company shall indemnify, hold harmless and defend
Executive against reasonable costs, including
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legal fees, incurred by him in connection with his consultation with legal
counsel or arising out of any action, suit or proceeding in which he may be
involved, as a result of his efforts, in good faith, to defend or enforce the
terms of this Agreement.
(b) In the event any dispute or controversy arising under or in
connection with Executive's termination is resolved in favor of the Executive,
whether by judgment, arbitration or settlement, Executive shall be entitled to
the payment of all back-pay, including salary, bonuses and any other cash
compensation, fringe benefits and any compensation and benefits due Executive
under this Agreement.
(c) The Holding Company shall indemnify, hold harmless and defend
Executive for all acts or omissions taken or not taken by him in good faith
while performing services for the Holding Company, to the same extent and upon
the same terms and conditions as other similarly situated officers and directors
of the Holding Company. If and to the extent that the Holding Company maintains,
at any time during the period of Executive's employment, an insurance policy
covering the other officers and directors of the Holding Company, against
lawsuits, the Holding Company, shall use its best efforts to cause Executive to
be covered under such policy upon the same terms and conditions as other
similarly situated officers and directors.
16. SUCCESSOR TO THE HOLDING COMPANY.
The Holding Company shall require any successor or assignee,
whether direct or indirect, by purchase, merger, consolidation or otherwise, to
all or substantially all the business or assets of the Bank or the Holding
Company, expressly and unconditionally to assume and agree to perform the
Holding Company's obligations under this Agreement, in the same manner and to
the same extent that the Holding Company would be required to perform if no such
succession or assignment had taken place.
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IN WITNESS WHEREOF, GREENPOINT FINANCIAL CORP. and GREENPOINT
BANK have caused this Agreement to be executed by their duly authorized officer,
and Executive has signed this Agreement, on the 9th day of March, 1997.
ATTEST: GREENPOINT FINANCIAL CORP.
Xxxxxx X. Xxxxxx By:/s/Xxxxxx X. Xxxxxxx
---------------------- --------------------------------
Secretary Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
Seal
ATTEST: GREENPOINT BANK
Xxxxxx X. Xxxxxx By:/s/Xxxxxx X. Xxxxxxx
---------------------- --------------------------------
Secretary Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
Seal
WITNESS: /s/Xxxxxxx X. Xxxxxxxxxx
------------------- ---------------------------------
Xxxxxxx X. Xxxxxxxxxx
Executive
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