1
Exhibit 10.7
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 30, 1998 between THE DIME SAVINGS
BANK OF NEW YORK, FSB (the "Bank"), a federal stock savings bank having its
principal executive offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and
XXXX X. XXXXX (the "Executive").
-----------
A. The Bank is desirous of employing the Executive upon the terms and
conditions set forth in this Agreement.
B. The Executive is desirous of being employed by the Bank upon the terms
and conditions set forth in this Agreement.
------------
Therefore, the Bank and the Executive, intending to be legally bound,
agree as follows:
1. Employment. Subject to the terms and conditions of this
Agreement, the Bank hereby employs the Executive, and the Executive hereby
accepts such employment.
2. Term of Employment. (a) The term of the Executive's employment
under this Agreement shall be deemed to have commenced on the date of this
Agreement and shall continue until December 2, 2001 unless this Agreement has
been terminated prior thereto in accordance with its provisions. (As used in
this Agreement, (i) "Term" shall mean the full term of this Agreement and (ii)
"remaining Term" shall mean the balance of the Term remaining at a specified
time.)
2
(b) The Executive's employment may be terminated during the Term of
this Agreement by the Bank or the Executive in the manner specified in this
Agreement. Any such termination of employment shall result in a termination of
this Agreement on the Effective Date of Termination (as defined in Section 13);
provided that, notwithstanding anything to the contrary in the foregoing, any
right of the Executive to any payments or benefits as a result of a termination
of the Executive's employment (as provided in this Agreement) shall survive the
termination of this Agreement.
3. Offices. During the period during the Term ending December 1,
1999, the Executive shall continue to serve as an officer of the Bank and its
parent corporation, Dime Bancorp, Inc. (the "Company"). In addition, during the
period during the Term ending December 1, 1999, the Executive shall serve as an
officer of the Bank's mortgage banking subsidiary, North American Mortgage
Company or its successor (the "Subsidiary"). During the period during the Term
commencing December 2, 1999, the Executive shall serve as an executive employee
of the Bank. During the Term, the Executive shall also serve, for any period for
which the Executive may from time to time be elected, as an officer or director
of subsidiaries or affiliates of the Bank.
4. Duties. (a) During the period during the Term ending December 1,
1998, the Executive shall serve as an Executive Vice President of the Bank and
the Company and as the Chief Executive Officer of the Subsidiary and shall
perform such duties in connection therewith as may be assigned to him from time
to time by the Chief Executive Officer of the Bank or the Company, as the case
may be.
(b) During the period during the Term from December 2, 1998 through
December
2
3
1, 1999, the Executive shall continue to serve as an Executive Vice President of
the Bank and the Company and perform the duties in connection therewith set
forth in Section 4(a). In addition, during such period the Executive shall serve
as transitional Chief Executive Officer of the Subsidiary and perform the duties
in connection therewith set forth in Section 4(a) until a successor Chief
Executive Officer of the Subsidiary is appointed during such period.
(c) During the period during the Term commencing December 2, 1999,
the Executive shall serve as an executive employee of the Bank and shall perform
such duties in connection therewith as may be assigned to him from time to time
by the Chief Executive Officer of the Bank.
(d) During the period during the Term ending December 1, 1998
(except for periods of illness and vacation), substantially all of the
Executive's business time, attention, skill and efforts shall be devoted to the
performance of the Executive's duties under this Agreement. During the period
during the Term from December 2, 1998 through December 1, 1999 (except for
periods of illness and vacation), not less than the equivalent of 144 full-time
days of the Executive's business time, attention, skill and efforts shall be
devoted to the performance of the Executive's duties under this Agreement.
During each of the periods during the Term from December 2, 1999 through
December 1, 2000, and from December 2, 2000 through December 2, 2001 (except for
periods of illness and vacation), not less than the equivalent of 84 full-time
days of the Executive's business time, attention, skill and efforts shall be
devoted to the performance of the Executive's duties under this Agreement.
During each period during the Term commencing on or after December 2, 1998, the
Bank shall have the right, in its discretion,
3
4
to designate the days or portions thereof on which the Executive shall be
required to perform his duties under this Agreement. To the extent that the
Executive engages in business activities during any period during the Term
commencing on or after December 2, 1998 in addition to his duties to the Bank
set forth herein, it is understood and agreed that the Executive shall not
engage in any activities which would materially interfere with his ability to
perform his duties hereunder as requested from time to time by the Bank and
shall not engage, directly or indirectly, as an officer, director, principal,
employee, stockholder or consultant of any corporation or other business entity
which competes in any material respect with the businesses carried on by the
Bank and its subsidiaries; provided, however, that the Executive will be
permitted to own as a passive investor less than 5% of any class of
publicly-traded securities of any entity which competes with the Bank and its
subsidiaries without being deemed to have violated this Section 4(d). Subject to
the foregoing restrictions and to the prior fulfillment of his obligations to
the Bank hereunder, the Executive shall be entitled to perform consulting
services for third parties during any period during the Term commencing on or
after December 2, 1998 with the prior written approval of the Bank, such
approval not to be unreasonably withheld or delayed.
5. Compensation. (a) The annualized salary of the Executive during
the period during the Term ending December 1, 1998 shall be at the rate of
$375,000, which shall, subject to the provisions of Section 5(g), be payable in
installments in accordance with the prevailing general payroll practice of the
Bank as it may exist from time to time.
(b) The annual salary of the Executive during the period during the
Term from
4
5
December 2, 1998 through December 1, 1999 shall be at the rate of $250,000 for
the equivalent of 144 full-time days plus $2,500 per day for each full-time
equivalent day during such period in excess of 144 days during which the
Executive performs his duties hereunder, which shall, subject to the provisions
of Section 5(g), be payable in installments in accordance with the prevailing
general payroll practice of the Bank as it may exist from time to time.
(c) The annual salary of the Executive during each of the periods
during the Term from December 2, 1999 through December 1, 2000, and from
December 2, 2000 through December 2, 2001 shall be at the rate of $175,000 for
the equivalent of 84 full-time days plus $2,500 per day for each full-time
equivalent day during such periods in excess of 84 days during which the
Executive performs his duties hereunder, which shall, subject to the provisions
of Section 5(g), be payable in installments in accordance with the prevailing
general payroll practice of the Bank as it may exist from time to time.
(d) As used in this Agreement, "annual salary" shall mean, at any
time, the annual rate of salary then payable to the Executive pursuant to this
Section 5 (before deduction of any amounts deferred under any deferred
compensation plan of the Bank, any voluntary contributions to the Retirement
401(k) Investment Plan of the Company or other similar qualified plan under
Section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code")
(collectively, the "401(k) Plan"), or any other deductions from income) and
shall be exclusive of bonuses, incentive compensation or other compensation or
benefits paid to or accrued for the Executive other than pursuant to this
Section 5.
(e) Solely to the extent that the Executive does not accrue benefits
pursuant to the qualified retirement plans of the Bank or the Benefit
Restoration Plan of The Dime Savings Bank
5
6
of New York, FSB (the "Benefit Restoration Plan") with respect to any period
during his employment by the Bank following December 2, 1998, and to the extent
not otherwise provided pursuant to Section 11(g)(ii) or 11(g)(iii) or otherwise
limited pursuant to Section 8(c), unless the Executive terminates his employment
prior thereto other than as contemplated by Section 11(c)(ii) in connection with
a Change in Control (as defined in Section 11(a)), the Executive shall be paid,
within 120 days of the earlier to occur of (A) the Effective Date of Termination
of the Executive's employment by the Bank (unless such termination is for
"cause," as defined in Section 8(b)), or (B) December 2, 2001, a lump sum amount
equal to the sum of the following: (i) the excess of the Present Value (as
defined below) of the benefits the Executive would have accrued and would have a
vested interest in under the Retirement Plan of Dime Bancorp, Inc. (the
"Retirement Plan") and the related provisions of the Benefit Restoration Plan if
the Executive had been otherwise employed as a full-time salaried employee
through the remaining Term at the time of such termination (commencing with the
date of this Agreement) earning the same amount of base pay as the annual salary
(as described in this Section 5) which would have been paid to the Executive
over such remaining Term in accordance with the provisions of this Agreement,
over the Present Value of the benefits the Executive actually accrued under the
Retirement Plan and the related provisions of the Benefit Restoration Plan in
which the Executive has a vested interest, plus (ii) the excess, if any, of the
amount of Bank matching contributions that would have been made and in which the
Executive would have a vested interest under the 401(k) Plan and the related
provisions of the Benefit Restoration Plan, in each instance if the Executive
had been otherwise employed as a full-time salaried employee of the
6
7
Bank through the remaining Term at the time of such termination (commencing with
the date of this Agreement) earning the same amount of base pay as the annual
salary (as described in this Section 5) which would have been paid to the
Executive over such remaining Term in accordance with the provisions of this
Agreement, and assuming solely for these purposes that the Executive had made
the maximum contributions permitted under the terms of the 401(k) Plan, over the
amount actually accrued by the Executive with respect to Bank matching
contributions under such 401(k) Plan and the related provisions of the Benefit
Restoration Plan in which the Executive has a vested interest. For these
purposes, the "Present Value" of benefits shall be determined as of the date of
the termination of the Executive's employment with the Bank and shall be
calculated in the same manner as then applies for purposes of determining lump
sum benefits under the Retirement Plan. Further, in determining the value of
benefits described in clause (ii) above, such benefits shall be credited with
the same deemed rate of earnings (or losses) as apply to the Executive's deemed
investments of his 401(k) Plan Restoration Account under the Benefit Restoration
Plan. The Executive shall participate in the Supplemental Executive Retirement
Plan of the Company (the "SERP") with a "Pension Goal" under such plan of not
less than 50% (with such Pension Goal, "Compensation" and "Average Compensation"
as described in the grant letter related to the SERP of even date herewith (the
"SERP Grant Letter")), but subject to the vesting provisions under such plan or,
as applicable, Section 11(g)(ii). The benefits otherwise provided pursuant to
this Section 5(e) that relate to benefits under the Retirement Plan and the
related provisions of the Benefit Restoration Plan shall offset the benefits, if
any, to be provided under the SERP (with the offset of the other Section
7
8
5(e) benefits based upon such benefits as if they were payable in the form of a
single life annuity or otherwise as provided under the SERP).
(f) The Executive shall not have or acquire by virtue of this
Agreement any rights to participate in, or receive benefits with respect to, any
compensation or benefit plan or program of the Bank, except (i) that while
employed by the Bank the Executive may participate in such plans or programs to
the extent provided in such plans and programs and on the same basis as if the
Executive's employment were not subject to the terms and conditions of this
Agreement, or (ii) as otherwise specifically provided in this Agreement.
(g) Notwithstanding anything to the contrary in the foregoing
provisions, the payment of any amounts that would otherwise be payable to the
Executive but which would be in excess of the amount which the Company, the Bank
or the Subsidiary could deduct for federal income tax purposes if then paid, on
account of the operation of Section 162(m) of the Code, shall be deferred to the
extent that such deferral is required pursuant to a policy adopted by the
Compensation Committee of the Company or the Bank and, to the extent so
deferred, shall be payable pursuant to the relevant terms of the Dime Bancorp,
Inc. Voluntary Deferred Compensation Plan; provided, however, that, if a Change
in Control (as defined in Section 11(a)) has occurred, deferral of amounts
payable hereunder to the Executive on or after the date of such Change in
Control will only be required if and to the extent such policy in effect
immediately prior to the Change in Control (without taking into consideration
any changes therein made in contemplation of the occurrence of the Change in
Control) requires or would have required such deferral.
8
9
6. Disability. (a) The Bank may terminate the Executive's employment
under this Agreement for "permanent disability" if (i) the Executive shall
become physically or mentally disabled or incapacitated to the extent that the
Executive has been absent from the Executive's duties with the Bank on account
of such disabilities or incapacitation as determined in a manner consistent with
the policy which applies generally to employees of the Bank on a full-time basis
for a period of six consecutive months, and (ii) within 30 days after written
notice of proposed termination for permanent disability is given by the Bank to
the Executive, the Executive shall not have returned to full-time performance of
the Executive's duties.
(b) In the event of termination for "permanent disability," the Bank
shall continue to pay the Executive an amount equal to the Executive's then
annual salary pursuant to Section 5 (less any benefits that would have been
payable to the Executive had the Executive elected the maximum available amount
of disability insurance coverage available from the Bank) for a period
commencing on the Effective Date of Termination and ending on the first
anniversary thereof (or the end of the remaining Term, if earlier).
Notwithstanding the first sentence of this Section 6(b), any such payment shall
terminate upon the earliest to occur of (A) the date the Executive returns to
the level of employment with the Bank otherwise contemplated by this Agreement;
(B) the Executive's full-time employment by another employer; or (C) the
Executive's death. In the event of termination for "permanent disability," the
Bank also shall continue to provide until the end of the remaining Term (or the
Executive's earlier death) the same level of life, medical and dental insurance
coverage as is maintained by the Bank for full-time employees of the Bank,
provided that the Executive shall continue to pay all amounts in respect of such
9
10
coverage that other employees receiving the same level of coverage are required
to pay. In the event of a termination of the Executive's employment for
"permanent disability" during the Term at any time following a Change in Control
(as defined in Section 11(a)), the provisions of Section 11 shall apply in lieu
of the provisions of this Section 6(b).
(c) There shall be no reduction in the compensation payable to the
Executive or the Executive's other rights under this Agreement during any period
when the Executive is incapable of performing some or all of the Executive's
duties by reason of temporary or partial disability.
7. Death. In the event of the Executive's death during the Term,
this Agreement and all of the Bank's obligations under this Agreement shall
terminate.
8. Termination by the Bank. (a) The Bank may terminate the
Executive's employment under this Agreement at any time by giving the Executive
written notice of such termination, provided that, except where termination is
for "cause" (as defined in Section 8(b)), such notice shall be provided at least
30 days prior to the Effective Date of Termination. In the event of a
termination of the Executive's employment by the Bank, other than a termination
for "cause" (as defined in Section 8(b)), the Bank shall (subject to the
provisions of Section 8(c)) (i) pay to the Executive, as a severance payment for
services previously rendered to the Company and the Bank, a lump sum equal to
the aggregate annual salary (as defined in Section 5(d)) payable to the
Executive with respect to the remainder of the Term as of the Effective Date of
Termination (assuming for this purpose that the Executive performed services
hereunder for no more than the minimum number of full-time equivalent days
required in each of the periods of the
10
11
Term commencing on or after December 2, 1998) and (ii) maintain the same level
of life, medical and dental insurance coverage as is maintained by the Bank for
full-time employees of the Bank, provided that the Executive shall continue to
pay all amounts in respect of such coverage that other employees receiving the
same level of coverage are required to pay, for the remainder of the Term as of
the Effective Date of Termination (or the Executive's earlier death). In the
event of a termination of the Executive's employment by the Bank during the Term
following a Change in Control, the provisions of Section 11 shall apply in lieu
of the provisions of the immediately preceding sentence of this Section 8(a).
(b) The Executive shall have no right to receive compensation or
other benefits under this Agreement for any period after the Effective Date of
Termination if the Executive's employment is terminated for cause. As used in
this Agreement, "cause" shall mean the Executive's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform assigned duties, willful violation of any
law, rule or regulation (other than traffic violations or similar offenses) or
final cease and desist order or material breach of any provision of this
Agreement.
(c) (i) Notwithstanding any other provision of this Section 8 or of
Section 11, if at the Effective Date of Termination any statute, regulation,
order, agreement, or regulatory interpretation thereof that is valid and binding
upon the Bank (a "Regulatory Restriction") shall restrict, prohibit or limit the
amount of any payment or the provision of any benefit that the Bank would
otherwise be liable for under this Section 8 or under Section 11, then the
amount that the
11
12
Bank shall pay to the Executive hereunder shall not exceed the maximum amount
permissible under such Regulatory Restriction; provided, that if such Regulatory
Restriction shall subsequently be rescinded, superseded, amended or otherwise
determined not to restrict, limit or prohibit payment by the Bank of amounts
otherwise due the Executive hereunder, then the Bank shall promptly thereafter
pay to such Executive any amounts (or the value of any benefit) previously
withheld from such Executive as a result of such Regulatory Restriction.
(ii) Notwithstanding any other provision of this Section 8 or of
Section 11, in the event that any amount otherwise payable hereunder other than
on account of events described in Sections 11(c)(i) or 11(c)(ii) following a
Change in Control (as hereinafter defined) would be deemed to constitute a
parachute payment (a "Parachute Payment") within the meaning of Section 280G of
the Code, and if any such Parachute Payment, when added to any other payments
which are deemed to constitute Parachute Payments, would otherwise result in the
imposition of an excise tax under Section 4999 of the Code, the amounts payable
(other than amounts payable under the SERP or otherwise payable on account of
events described in Sections 11(c)(i) or 11(c)(ii) following a Change in
Control) shall be reduced by the smallest amount necessary to avoid the
imposition of such excise tax. Any such limitation shall be applied to such
compensation and benefit amounts, and in such order, as the Bank shall determine
in its sole discretion. References to the Code in this Agreement shall be to the
Code as presently in effect or to the corresponding provisions of any succeeding
law.
(d) As of the date hereof, the principal place of business at which
the Executive shall be based for the performance of his duties pursuant to this
Agreement is located in Tampa,
12
13
Florida. If the Bank shall relocate such principal place of business at which
the Executive shall be based to a location which is more than 75 miles from
Tampa, Florida, the Executive shall have the right, for a period of 30 days
following such relocation, to elect to treat such relocation as a termination of
the Executive's employment by the Bank without cause (as defined in Section
8(b)) by giving the Bank written notice of such election. In the event that the
Executive fails to give notice within such 30-day period, he shall be deemed to
have waived his right to make such an election with respect to such relocation.
(e) Upon the termination of the Executive's employment by the Bank
pursuant to the provisions of this Section 8, to the extent not otherwise
limited by Section 8(c) and except where termination is for "cause" (as defined
in Section 8(b)), each outstanding Non-Accelerated Stock Option (as defined in
Section 11(d)(ii)) and each share of restricted stock which has not previously
vested that is held by the Executive shall (to the extent permitted by the plan
under which such Non-Accelerated Stock Option or restricted stock was granted),
notwithstanding anything to the contrary in the grant letter related to such
Non-Accelerated Stock Option or restricted stock and regardless of the actual
Effective Date of Termination, immediately vest and become exercisable, in the
case of a Non-Accelerated Stock Option, and immediately vest, in the case of
restricted stock.
(f) If the Executive's employment is proposed to be terminated by
the Bank for "cause" (as defined in Section 8(b)), the Bank shall, prior to
delivering to the Executive a notice of termination, afford the Executive
reasonable prior notice of such proposed termination and an opportunity for him,
together with counsel, to be heard.
9. Voluntary Termination by the Executive. The Executive shall have
the right to
13
14
terminate the Executive's employment under this Agreement at any time upon at
least 30 but not more than 60 days' prior written notice to the Bank. If this
Agreement is terminated pursuant to the immediately preceding sentence, all of
the Bank's obligations under this Agreement shall terminate and the Executive
shall not be entitled to any compensation or benefits after the Effective Date
of Termination, except to the extent provided in Section 11.
10. Additional Termination and Suspension Provisions. (a) 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 (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.
(b) If the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act), all obligations under this Agreement shall
terminate as of the date of default, but this paragraph shall not affect any
vested rights of the parties.
(c) 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 Thrift Supervision
or his or her designee (the "Director"), at the time the Federal Deposit
Insurance Corporation 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; or (ii) by the Director, at the time the Director
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.
14
15
(d) 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 (12 U.S.C.
1818(e)(3) and (g)(1)), the Bank's obligations under this Agreement shall be
suspended as of the date of service unless stayed by appropriate proceedings. If
the charges in the notice are dismissed, the Bank may in its discretion (a) pay
the Executive all or part of the compensation withheld while its contract
obligations were suspended and (b) reinstate (in whole or in part) any of its
obligations which were suspended.
(e) The provisions of paragraphs (a) through (d) of this Section 10
are required to be set forth in this Agreement by regulations applicable to the
Bank on the date of this Agreement. If any such regulation shall hereafter be
amended or modified, or if any new regulation applicable to the Bank and
effective after the date of this Agreement shall require the inclusion in this
Agreement of a provision not presently included in this Agreement, then the
foregoing provisions of paragraphs (a) through (d) of this Section 10 shall be
deemed amended to the extent necessary to give effect in this Agreement to any
such amended, modified or new regulation.
11. Change in Control. (a) As used in this Agreement, a "Change in
Control" shall be deemed to have occurred if the event set forth in any one of
the following paragraphs shall have occurred:
15
16
(I) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired directly from
the Company or its Affiliates) representing 35% or more of the combined
voting power of the Company's then outstanding securities; or
(II) the following individuals cease for any reason to constitute a
majority of the number of directors then serving as directors of the
Company: individuals who, on July 24, 1997, constitute the Board of
Directors of the Company and any new director (other than a director whose
initial assumption of office is in connection with the settlement of an
actual or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the
Company) whose appointment or election by the Board of Directors of the
Company or nomination for election by the Company's stockholders was
approved or recommended by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors on July 24, 1997
or whose appointment, election or nomination for election was previously
so approved or recommended; or
(III) there is consummated a merger or consolidation of the Company
or any direct or indirect subsidiary of the Company with any other
corporation or entity, other than (i) a merger or consolidation which
would result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity or any Parent thereof), in combination
with the ownership of any
16
17
trustee or other fiduciary holding securities under an employee benefit
plan of the Company or any subsidiary of the Company, at least 65% of the
combined voting power of the securities of the Company, such surviving
entity or any Parent thereof outstanding immediately after such merger or
consolidation or (ii) a merger or consolidation effected solely to
implement a recapitalization of the Company or the Bank (or similar
transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company or the Bank (not
including in the securities beneficially owned by such Person any
securities acquired directly from the Company or its Affiliates)
representing 35% or more of the combined voting power of the Company's or
the Bank's then outstanding securities; or
(IV) the stockholders of the Company or the Bank approve a plan of
complete liquidation or dissolution of the Company or the Bank,
respectively, or there is consummated a sale or disposition by the Company
or any of its subsidiaries of any assets which individually or as part of
a series of related transactions constitute all or substantially all of
the Company's consolidated assets (provided that, for these purposes, a
sale of all or substantially all of the voting securities of the Bank or a
Parent of the Bank shall be deemed to constitute a sale of substantially
all of the Company's consolidated assets), other than any such sale or
disposition to an entity at least 65% of the combined voting power of the
voting securities of which are owned by stockholders of the Company in
substantially the same proportions as their ownership of the voting
securities of the Company immediately prior to such sale or disposition;
or
17
18
(V) the execution of a binding agreement that if consummated would
result in a Change in Control of a type specified in clause (I) or (III)
of this Section 11(a) (an "Acquisition Agreement") or of a binding
agreement for the sale or disposition of assets that, if consummated,
would result in a Change in Control of a type specified in clause (IV) of
this Section 11(a) (an "Asset Sale Agreement") or the adoption by the
Board of Directors of the Company or the Bank of a plan of complete
liquidation or dissolution of the Company or the Bank that, if
consummated, would result in a Change in Control of a type specified in
clause (IV) of this Section 11(a) (a "Plan of Liquidation"), provided
however, that a Change in Control of the type specified in this clause (V)
shall not be deemed to exist or have occurred as a result of the execution
of such Acquisition Agreement or Asset Sale Agreement, or the adoption of
such a Plan of Liquidation, from and after the Abandonment Date if the
Effective Date of Termination of the Executive's employment has not
occurred on or prior to the Abandonment Date. As used in this Section, the
term "Abandonment Date" shall mean the date on which (A) an Acquisition
Agreement, Asset Sale Agreement or Plan of Liquidation is terminated
(pursuant to its terms or otherwise) without having been consummated, (B)
the parties to an Acquisition Agreement or Asset Sale Agreement abandon
the transactions contemplated thereby, (C) the Bank or the Company
abandons a Plan of Liquidation or (D) a court or regulatory body having
competent jurisdiction enjoins or issues a cease and desist or stop order
with respect to or otherwise prevents the consummation of, or a regulatory
body notifies the Bank or the Company that it will not approve, an
Acquisition Agreement, Asset Sale
18
19
Agreement or Plan of Liquidation or the transactions contemplated thereby
and such injunction, order or notice has become final and not subject to
appeal.
As used in connection with the foregoing definition of Change in
Control, "Affiliate" shall have the meaning set forth in Rule 12b-2 promulgated
under Section 12 of the Exchange Act; "Beneficial Owner" shall have the meaning
set forth in Rule 13d-3 under the Exchange Act; "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended from time to time; "Parent" shall
mean any entity that becomes the Beneficial Owner of at least 80% of the voting
power of the outstanding voting securities of the Company or of an entity that
survives any merger or consolidation of the Company or any direct or indirect
subsidiary of the Company; and "Person" shall have the meaning given in Section
3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof, except that such term shall not include (i) the Company or any of its
subsidiaries, a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its Affiliates, an underwriter temporarily
holding securities pursuant to an offering of such securities, or a corporation
or entity owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company.
(b) If the Bank, the Company or the Subsidiary shall relocate the
principal place of business at which the Executive shall be based for the
performance of his duties pursuant to this Agreement to a location which is more
than 75 miles from Tampa, Florida after a Change in Control, and if the
Executive shall, as a result, be required to change the Executive's principal
residence, the Bank shall (i) promptly pay (or reimburse the Executive for) all
reasonable moving
19
20
expenses incurred by the Executive as a result of such change in the Executive's
principal residence, and (ii) indemnify the Executive against, and reimburse the
Executive for, any loss incurred as a result of the sale of the Executive's
principal residence (which loss shall be computed for the purpose of this
Agreement as the difference between the actual sales price (net of closing costs
and brokerage fees) of such residence and the fair market value of such
residence (computed as of the time such principal place of business is
relocated) as determined by an independent real estate appraiser designated and
paid by the Bank or the Company and acceptable to the Executive), provided that
such sale of the Executive's principal residence occurs within six months after
the Bank, the Company or the Subsidiary relocates the principal place of
business at which the Executive shall be based.
(c) (i) If a Change in Control shall occur, the Executive shall be
entitled to the compensation and benefits provided in paragraphs (d), (e), (f)
and (g) of this Section 11 upon the subsequent termination of the Executive's
employment, at any time during the remaining Term in effect at the time of the
Change in Control, by the Bank (including, without limitation, a termination for
permanent disability), other than a termination for cause, provided that the
rights to any such compensation and benefits shall be subject to the limitations
and provisions set forth in Section 8(c).
(ii) If (A) a Change in Control shall occur, and thereafter the Bank
(notwithstanding its right to do so under Section 4 or Section 5) either (B)
makes a material change in the Executive's functions, duties or
responsibilities, which change would cause the Executive's position with the
Bank to become one of lesser responsibility, importance or scope from that
otherwise contemplated by this Agreement, or (C) reduces the Executive's annual
salary
20
21
below that otherwise contemplated by this Agreement (an event specified in
clause (B) or (C) is hereafter referred to as a "Material Change"), the
Executive shall be entitled to the compensation and benefits provided in
paragraphs (d), (e), (f) and (g) of this Section 11 (subject to the limitations
and provisions set forth in Section 8(c)) upon the subsequent termination of the
Executive's employment, at any time during the remaining Term in effect at the
time of the Change in Control, by the Executive.
(iii) Only for purposes of determining whether there has been a
termination of the Executive's employment during the remaining Term in effect at
the time of a Change in Control (as specified in paragraphs (c)(i) and (c)(ii)
of this Section 11, as the case may be) so as to entitle the Executive to the
compensation and benefits provided in paragraphs (d), (e), (f) and (g) of this
Section 11, a termination of the Executive's employment following a Change in
Control shall be deemed to have occurred on such date during the remaining Term
that notice of termination is given by the Bank or the Executive to the other
(regardless of the Effective Date of Termination specified in such notice).
Notwithstanding the immediately preceding sentence, the Executive shall continue
to be employed by the Bank pursuant to this Agreement until the Effective Date
of Termination specified in the notice of termination.
(d)(i) Upon the occurrence of a Change in Control followed by any
termination of the Executive's employment pursuant to Section 11(c)(i) or
(c)(ii), to the extent not otherwise limited pursuant to Section 8(c), the Bank
shall pay the Executive, as a severance payment for services previously rendered
to the Bank, a lump sum equal to three times the Executive's annual salary (as
defined in Section 5(d)) (assuming for this purpose that the Executive performed
21
22
services hereunder for no more than the minimum number of full-time equivalent
days required in each of the periods of the Term commencing on or after December
2, 1998).
(ii) Upon the occurrence of (a) the termination of the Executive's
employment by the Bank (unless such termination is for "cause" as defined in
Section 8(b)) other than any termination of the Executive's employment pursuant
to Section 11(c)(i) or (c)(ii) following a Change in Control, to the extent not
otherwise limited pursuant to Section 8(c): (A) each Non- Accelerated Stock
Option held by the Executive shall (to the extent permitted by the plan under
which such Non-Accelerated Stock Option was granted), notwithstanding anything
to the contrary in the grant letter related to such Non-Accelerated Stock Option
and regardless of the actual Effective Date of Termination, vest and become
exercisable in accordance with the provisions of, and remain exercisable for the
term specified in, such grant letter as if there had been no termination of the
Executive's employment and the Executive remained in the employment of the Bank
for the entire term of such Non-Accelerated Stock Option and (B) each Vested
Stock Option held by the Executive shall (to the extent permitted by the plan
under which such Vested Stock Option was granted), notwithstanding anything to
the contrary in the grant letter related to such Vested Stock Option and
regardless of the actual Effective Date of Termination, remain exercisable for
the term specified in such grant letter as if there had been no termination of
the Executive's employment and the Executive remained in the employment of the
Bank for the entire term of such Vested Stock Option. As used in this Section
11(d)(ii) and Section 11(d)(iii), the term (I) "Non-Accelerated Stock Option"
shall mean any stock option (including any tandem stock appreciation right)
previously or hereafter granted to the Executive under a stock incentive or
stock option plan of the Company that has not, pursuant to the
22
23
provisions of such stock incentive or stock option plan or the grant letter
pursuant to which such stock option was granted to the Executive, vested and
become exercisable prior to the Effective Date of Termination and (II) "Vested
Stock Option" shall mean any stock option (including any tandem stock
appreciation right) previously or hereafter granted to the Executive under a
stock incentive or stock option plan of the Company that vests and becomes
exercisable prior to the Effective Date of Termination.
(iii) Upon the occurrence of a Change in Control followed by any
termination of the Executive's employment pursuant to Section 11(c)(i) or
(c)(ii), to the extent not otherwise limited pursuant to Section 8(c)(i): (A)
each Non-Accelerated Stock Option held by the Executive shall (to the extent
permitted by the plan under which such Non-Accelerated Stock Option was
granted), notwithstanding anything to the contrary in the grant letter related
to such Non-Accelerated Stock Option and regardless of the actual Effective Date
of Termination, immediately vest and become exercisable in accordance with the
provisions of, and remain exercisable for the term specified in, such grant
letter as if there had been no termination of the Executive's employment and the
Executive remained in the employment of the Bank for the entire term of such
Non-Accelerated Stock Option and (B) each Vested Stock Option held by the
Executive shall (to the extent permitted by the plan under which such Vested
Stock Option was granted), notwithstanding anything to the contrary in the grant
letter relating to such Vested Stock Option and regardless of the actual
Effective Date of Termination, remain exercisable for the term specified in such
grant letter as if there had been no termination of the Executive's employment
and the Executive had remained in the employment of the Bank for the entire term
of such Vested Stock Option.
23
24
(iv) Upon the occurrence of (a) the termination of the Executive's
employment by the Bank (unless such termination is for "cause" as defined in
Section 8(b)) or (b) a Change in Control followed by any termination of the
Executive's employment pursuant to Section 11(c)(i) or (c)(ii), to the extent
not otherwise limited pursuant to Section 8(c), each grant of restricted stock
to the Executive shall (to the extent permitted by the plan under which such
restricted stock was granted), notwithstanding anything to the contrary in the
grant letter related to such restricted stock, vest and become non-forfeitable
by the Executive as if there had been no termination of the Executive's
employment and the Executive remained in the employment of the Bank for the
entire term of the vesting period applicable to such grant of restricted stock.
(e) Any payment pursuant to Section 11(d)(i) or 11(g)(iii) shall be
made to the Executive within 30 days after the Effective Date of Termination.
(f) Upon the occurrence of a Change in Control followed by any
termination of the Executive's employment pursuant to Section 11(c)(i) or
(c)(ii), to the extent not otherwise limited pursuant to Section 8(c), the Bank
shall cause to be continued until the end of the remaining Term (or the
Executive's earlier death) the same level of life, disability, medical and
dental insurance coverage as is maintained by the Bank for full-time employees
of the Bank, provided that the Executive shall continue to pay all amounts in
respect of such coverage that other employees receiving the same levels of
coverage are required to pay.
(g)(i) In the event of termination of the Executive's employment
pursuant to Section 11(c)(i) or (c)(ii), to the extent not otherwise limited
pursuant to Section 8(c), the Executive shall vest in the benefits under Section
5(e) hereof (but which shall then be calculated
24
25
assuming that the benefits payable under the Retirement Plan, the 401(k) Plan
and the Benefit Restoration Plan are fully vested).
(g)(ii)(A) On and after any Change in Control, to the extent not
otherwise limited pursuant to Section 8(c)(i), the Executive shall be eligible
to be paid, under the SERP, a SERP benefit, to the extent vested (and subject to
additional vesting in accordance with the terms of the SERP as such plan
provided immediately prior to the Change in Control, or if it results in a
greater vested percentage, with vesting determined otherwise pursuant to this
Section 11(g)(ii)), that is not less than a benefit calculated based upon the
amount of the Executive's "Pension Goal" and "Average Compensation" and the
otherwise applicable terms of the SERP, each as determined immediately prior to
the Change in Control (but with offsets provided for therein related to benefits
otherwise to be provided after the Change in Control). The rights of the
Executive and the obligations of the Bank with respect to the benefits described
under this Section 11(g)(ii)(A) shall survive the termination of this Agreement.
(g)(ii)(B) In the event of termination of the Executive's employment
pursuant to Section 11(c)(i) or (c)(ii), to the extent not otherwise limited
pursuant to Section 8(c), notwithstanding any vesting provisions that would in
other circumstances require further service under the SERP, the Executive shall
be fully vested in the Executive's SERP benefit, which SERP benefit shall
otherwise be payable in accordance with the terms of the SERP, but offset by the
benefits provided pursuant to Section 5(e) hereunder as set forth therein and in
accordance with Section 11(g)(i).
25
26
(iii) In the event of termination of the Executive's employment
pursuant to Section 11(c)(i) or (c)(ii), to the extent not otherwise limited
pursuant to Section 8(c), the Executive shall be entitled to receive in a lump
sum payment an amount equal to any amounts forfeited by the Executive under the
401(k) Plan and under the Benefit Restoration Plan (solely to the extent such
Benefit Restoration Plan supplements benefits under the 401(k) Plan) as in
effect immediately prior to the Change in Control (or, if more favorable to the
Executive, as in effect immediately prior to the Effective Date of Termination).
(h)(i) If, on account of events described in Sections 11(c)(i) or
11(c)(ii) following a Change in Control, any payment or other benefit paid or to
be paid or any property transferred or to be transferred (collectively, a
"Severance Payment") with respect to one or more calendar years by or on behalf
of the Bank (or any affiliate of the Bank) to the Executive pursuant to this
Agreement shall constitute an "excess parachute payment" within the meaning of
Section 280G(b) of the Code subject to the tax imposed by Section 4999 of the
Code (the "Excise Tax"), then the Bank shall pay to the Executive an additional
amount (the "Gross Up Payment") such that the amount paid or transferred to the
Executive, after deduction of any Excise Tax on the Severance Payment, and any
federal, state and local income tax, employment tax and Excise Tax upon the
Gross Up Payment, shall be equal to the Severance Payment. In addition, if,
absent a Change in Control or in other circumstances following a Change in
Control, notwithstanding the reductions mandated by Section 8(c), the SERP
benefits (if any) otherwise payable to the Executive shall constitute an "excess
parachute payment" within the meaning of Section 280G(b) of the Code subject to
the Excise Tax, then the Bank shall pay to the Executive one or more Gross Up
26
27
Payments such that the amount of such Gross Up Payments, when combined with such
SERP benefits, after deduction of any Excise Tax on the SERP benefits, and any
federal, state and local income tax, employment tax and Excise Tax upon the
Gross Up Payments, shall be equal to such SERP benefits.
(ii) For purposes of determining under Section 11(h)(i) whether any
portion of a Severance Payment or SERP benefit will be subject to the Excise Tax
and the amount of such Excise Tax, (A) the Severance Payment or SERP benefit and
payment provided for in Section 11(h)(i) shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section 280(G)(b)(1) of the Code shall
be treated as subject to the Excise Tax, unless and to the extent that tax
counsel selected by the Bank's independent auditors and acceptable to the
Executive is of the opinion that the Severance Payment or SERP benefit (in whole
or in part) does not constitute a "parachute payment" or such "excess parachute
payment" (in whole or in part) represents reasonable compensation for services
actually rendered within the meaning of Section 280G(b)(4) of the Code in excess
of the allocable base amount within the meaning of Section 280G(b)(3) of the
Code, or the Severance Payment or SERP benefit is otherwise not subject to the
Excise Tax, (B) the amount of the Severance Payment or SERP benefit that is
treated as subject to the Excise Tax shall be equal to the lesser of (X) the
total amount of the Severance Payment or SERP benefit, as applicable, and (Y)
the amount of "excess parachute payments" within the meaning of Section
280G(b)(1) of the Code (after applying clause (A) above), (C) any Gross Up
Payment pursuant to Section 11(h)(i) shall be treated as subject to the Excise
Tax in its entirety and (D) the value of any non-cash benefits or any deferred
payment or benefit shall be determined by the Company's
27
28
independent auditors in accordance with the principles of Sections 280G(d)(3)
and (4) of the Code.
(iii) If in circumstances described in Section 11(h)(i), by reason
of the filing by the Executive of an amended tax return, an audit by the
Internal Revenue Service or other taxing authority, or a final determination by
a court of competent jurisdiction, it is determined that "excess parachute
payments" exceeding those previously reported in his tax returns were received
by the Executive and as a result an additional Excise Tax (the "Additional
Excise Tax") shall become due, the Bank shall pay the Executive an additional
amount (the "Subsequent Gross Up Payment") such that the amount paid or
transferred to the Executive after deduction of (A) any Additional Excise Tax
and (B) on an after tax basis, any interest, additions and penalties with
respect to the Additional Excise Tax and (C) any federal, state and local income
tax, employment tax and Excise Tax upon the Subsequent Gross up Payment and (D)
the payments provided for in Section 11(h)(i), shall be equal to the Severance
Payment or SERP benefits, as appropriate.
(iv) Any Gross Up Payment required hereunder shall be made at least
ten days prior to the due date (without regard to extensions) of the Executive's
federal income tax return for the year with respect to which the "excess
parachute payment" is deemed made under the Code. Any Subsequent Gross Up
Payment required hereunder shall be made to the Executive within 30 days after
the amount thereof is determined. Notwithstanding the two immediately preceding
sentences, the Bank shall pay any federal, state and local tax or taxes and
employment taxes required to be withheld from the Executive's wages (within the
meaning of Section 3121
28
29
and 3402 of the Code) with respect to the "excess parachute payment" and any
such tax or taxes paid by the Company, the Bank or the Subsidiary to the
Internal Revenue Service or state or local taxing authority shall constitute
payment to the Executive.
(v) If the Excise Tax is finally determined (whether by the filing
of an amended tax return by the Executive, by audit of the Internal Revenue
Service or other taxing authority, or by a final determination of a court of
competent jurisdiction) to be less than the amount paid to or on behalf of the
Executive under the provisions of Sections 11(h)(i)-(iv) and the overpayment is
refunded to the Executive, the Executive shall repay to the Bank, promptly
following the receipt of the refund, the portion of the Gross Up Payment (and/or
Subsequent Gross Up Payment) attributable to such reduction of the Excise Tax
(plus the portion attributable to federal, state and local income tax and
employment taxes imposed on the portion being repaid by the Executive but only
to the extent that the repayment may result in a tax benefit to the Executive
under Section 1341 of the Code and similar provisions of applicable state and
local law).
(vi) The provisions of this Section 11(h) shall inure to the benefit
of the Executive during the Term of this Agreement regardless of whether or not
his employment is terminated, and if the Executive's employment is terminated,
the rights and obligations of the Executive and the Bank under this Section
11(h) shall survive the termination of this Agreement.
12. Post-Termination Obligations of the Executive. (a) Upon any
termination of the Executive's employment during the Term of this Agreement or
upon termination of the Executive's employment after the expiration of the Term
of this Agreement or upon retirement, the Executive agrees (i) not to make any
disclosure in violation of Section 12(b), (ii) to return to
29
30
the Bank all material documents relating to the business of the Company, the
Bank, the Subsidiary and their affiliates that are in the Executive's possession
or under the Executive's control, and (iii) except if the termination or
retirement occurs after a Change in Control, not to solicit (directly or
indirectly), for one year following the Effective Date of Termination (or date
of termination after the expiration of the Term) or retirement, the employment
of any person who is an employee of the Company, the Bank, the Subsidiary or
their affiliates on the Effective Date of Termination (or date of termination
after the expiration of the Term) or retirement or who, within six months prior
to the Effective Date of Termination (or date of termination after the
expiration of the Term) or retirement, was an employee of the Company, the Bank,
or Subsidiary or their affiliates, unless the Executive receives written
permission from the Bank to engage in the activities proscribed by this Section
12(a) or by Section 12(b) or to be relieved of any obligation under Section
12(a)(ii).
(b) The Executive recognizes and acknowledges that the confidential
business activities and plans for business activities of the Bank and its
subsidiaries and affiliates, as they may exist from time to time, are valuable,
special and unique assets of the Bank. The Executive shall not, during or at any
time after the Executive's employment, disclose any knowledge of the past,
present or planned business activities of the Bank or its subsidiaries or
affiliates that are of a confidential nature (collectively, the "Bank's
Confidential Activities") to any person, firm, corporation, bank, thrift
institution or other entity for any reason or purposes whatsoever.
Notwithstanding anything in this Section 12(b) to the contrary, the Executive
(i) may disclose any knowledge of banking, financial and/or economic principles,
concepts or ideas that are not derived from the Bank's Confidential Activities,
and (ii) shall not be precluded from disclosures
30
31
respecting the Bank's Confidential Activities that are (A) made pursuant to
compulsory legal process or when required by an appropriate governmental agency;
(B) public knowledge or become public without the Executive's breach of this
Section 12(b); (C) already known to the party to whom the Executive makes such
disclosures; or (D) approved by the Bank for disclosure.
(c) The parties, recognizing that irreparable injury will result to
the Bank, its business and property in the event of the Executive's breach or
threatened breach of Section 12(a) or (b), agree that in the event of such
breach or threatened breach by the Executive, the Bank will be entitled, in
addition to any other remedies and damages that may be available, to seek and
obtain an injunction to restrain the violation of Section 12(a) or (b) by the
Executive.
13. Notices. All notices under this Agreement shall be in writing
and shall be delivered personally or sent by registered or certified mail,
return receipt requested, (a) to the Bank, at its address set forth above (to
the attention of its Chief Executive Officer) and (b) to the Executive, at the
Executive's residence address as appearing in the records of the Bank, or to
such other address as either party may hereafter designate in writing in the
manner provided in this Section 13. All notices under this Agreement shall be
deemed given (i) upon receipt if delivered personally or (ii) two days after
deposit in a facility of the U.S. Postal Service with postage prepaid. As used
in this Agreement, the term "Effective Date of Termination" shall mean the date
specified in a notice hereunder on which such Executive's employment is to
terminate, provided, however, that no such notice shall specify an Effective
Date of Termination that is prior to the date on which any such notice is given.
31
32
14. Complete Understanding. This Agreement, together with the
Agreement Regarding Initial Employment Terms attached hereto as Exhibit A, and
the SERP Grant Letter, constitute the complete understanding between the parties
with respect to the subject matter hereof and thereof and merge and supersede
all prior oral and written agreements and understandings and all contemporaneous
oral agreements and understandings with respect to the subject matter hereof and
thereof, including, without limitation, any other employment agreement
heretofore executed by the Executive and the Bank or any of its subsidiaries or
affiliates; provided, however, that where references in the Agreement Regarding
Initial Employment Terms relate to periods during the term of the employment
agreement described therein, they relate to such periods as contemplated in a
previous employment agreement entered into between the Bank and the Executive
dated as of December 2, 1996. In the event of any conflict between the express
provisions of this Agreement and either of such Agreement Regarding Initial
Employment Terms or such SERP Grant Letter, the express provisions of this
Agreement shall be controlling. This Agreement may not be amended, terminated or
rescinded except in a writing signed by the party to be charged.
15. No Waiver. The failure of either party at any time to require
performance by the other party of a provision of this Agreement or to resort to
a remedy at law or in equity or otherwise shall in no way affect the right of
such party to require full performance or to resort to such remedy at any time
thereafter nor shall a waiver by either party of the breach of any provision of
this Agreement be taken or held to be a waiver of any subsequent breach of such
provision unless expressly so stated in writing. No waiver of any of the
provisions of this Agreement shall be effective unless in writing and signed by
the party to be charged.
32
33
16. Governing Law. This Agreement shall be governed by the laws of
the State of New York, without regard to conflict of laws principles applied in
the State of New York.
17. Headings. The headings to the Sections of this Agreement are for
convenience of reference only and shall not be given any effect in the
construction or interpretation of this Agreement.
18. Severability. If any provision of this Agreement is held by a
court or other authority having competent jurisdiction to be invalid, void or
otherwise unenforceable, in whole or in part, by reason of any applicable law,
statute or regulation or any interpretation thereof, then (a) the remainder of
the provisions of this Agreement shall remain in full force and effect and in no
way be affected, impaired or invalidated and (b) the provision so held to be
invalid, void or otherwise unenforceable shall be deemed modified in amount,
duration, scope or otherwise to the minimum extent necessary so that such
provision shall not be invalid, void or otherwise unenforceable by reason of
such law, statute, regulation or interpretation and such provision, as so
modified, shall remain in full force and effect.
19. Payment of Legal Fees. If any legal action or proceeding is
commenced to enforce or interpret the provisions of this Agreement, or to
recover damages for its breach, all reasonable legal fees, disbursements and
court costs paid or incurred by the Executive arising out of or resulting from
such action or proceeding shall be paid or reimbursed to the Executive by the
Bank, provided the Executive shall be the prevailing party in such action or
proceeding.
20. Assumption by Company. This Agreement shall be assumable by the
Company at its election. Following any such election, the obligations of the
Bank under this Agreement shall become the obligations of the Company.
33
34
21. Taxes. Any payments due to the Executive pursuant to this
Agreement shall be reduced by all applicable federal, state, city or other taxes
required by law to be withheld with respect to such payments.
22. Limitation on Payments. Any payments made to the Executive
pursuant to this Agreement, or otherwise, are subject to and conditioned upon
their compliance with 12 USC ss. 1828(k) and any regulations promulgated
thereunder.
THE DIME SAVINGS BANK
OF NEW YORK, FSB
By: /s/XXXXXXXX X. XXXX
----------------------------------
Name:
Title:
Dated: February 11, 1998 /s/XXXX X. XXXXX
-------------------- ----------------------------------
XXXX X. XXXXX
34
