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EXHIBIT 10.33
ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION
EMPLOYMENT AGREEMENT WITH XXXXXX X. XXXXXX
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into as of March 29, 1997, by and between ASTORIA FEDERAL SAVINGS AND LOAN
ASSOCIATION, a savings institution organized and operating under the federal
laws of the United States and having an office at Xxx Xxxxxxx Xxxxxxx Xxxxx,
Xxxx Xxxxxxx, Xxx Xxxx 00000-0000 ("Association") and XXXXXX X. XXXXXX, an
individual ("Executive").
WITNESSETH:
WHEREAS, the Association is a wholly owned subsidiary of
Astoria Financial Corporation ("Company"), a publicly held business corporation
organized and operating under the laws of the State of Delaware; and
WHEREAS, the Association desires to assure for itself the
availability of the Executive's services and the ability of the Executive to
perform such services with a minimum of personal distraction in the event of a
pending or threatened Change of Control (as hereinafter defined); and
WHEREAS, the Executive is willing to serve the Association on
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and conditions hereinafter set forth, the Association and the
Executive hereby agree as follows:
SECTION 1. EMPLOYMENT.
The Association agrees to employ the Executive, and the
Executive hereby agrees to such employment, during the period and upon the terms
and conditions set forth in this Agreement.
SECTION 2. EMPLOYMENT PERIOD; REMAINING UNEXPIRED
EMPLOYMENT PERIOD.
(a) The terms and conditions of this Agreement shall be and
remain in effect during the period of employment established under this section
2 ("Employment Period"). The Employment Period shall be for an initial term of
three years beginning on the Effective Date of this Agreement as provided in
section 28 ("Effective Date"). Prior to the first anniversary of the Effective
Date of this Agreement and on each anniversary date thereafter (each, an
"Anniversary Date"), the Board of Directors of the Association ("Board") shall
review the terms of this Agreement and the Executive's performance of services
hereunder and may, in the absence of objection from the Executive, approve an
extension of the Employment Period. In such event, the Employment Period shall
be extended to the third anniversary of the relevant Anniversary Date.
(b) For all purposes of this Agreement, the term "Remaining
Unexpired
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Employment Period" as of any date shall mean the period beginning on such date
and ending on the Anniversary Date on which the Employment Period (as extended
pursuant to section 2(a) of this Agreement) is then scheduled to expire.
(c) Nothing in this Agreement shall be deemed to prohibit the
Association from terminating the Executive's employment at any time during the
Employment Period with or without notice for any reason; provided, however, that
the relative rights and obligations of the Association and the Executive in the
event of any such termination shall be determined under this Agreement.
SECTION 3. DUTIES.
The Executive shall serve as Vice Chairman and Chief
Administrative Officer of the Association, having such power, authority and
responsibility and performing such duties as are prescribed by or under the
By-Laws of the Association and as are customarily associated with such position.
The Executive shall devote his full business time and attention (other than
during weekends, holidays, approved vacation periods, and periods of illness or
approved leaves of absence) to the business and affairs of the Association and
shall use his best efforts to advance the interests of the Association.
SECTION 4. CASH COMPENSATION.
In consideration for the services to be rendered by the
Executive hereunder, the Association shall pay to him a salary at an initial
annual rate of THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000), payable in
approximately equal installments in accordance with the Association's customary
payroll practices for senior officers. Prior to each Anniversary Date occurring
during the Employment Period, the Board shall review the Executive's annual rate
of salary and may, in its discretion, approve an increase therein. In addition
to salary, the Executive may receive other cash compensation from the
Association for services hereunder at such times, in such amounts and on such
terms and conditions as the Board may determine from time to time.
SECTION 5. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
During the Employment Period, the Executive shall be treated
as an employee of the Association and shall be entitled to participate in and
receive benefits under any and all qualified or non-qualified retirement,
pension, savings, profit-sharing or stock bonus plans, any and all group life,
health (including hospitalization, medical and major medical), dental, accident
and long term disability insurance plans, and any other employee benefit and
compensation plans (including, but not limited to, any incentive compensation
plans or programs, stock option and appreciation rights plans and restricted
stock plans) as may from time to time be maintained by, or cover employees of,
the Association, in accordance with the terms and conditions of such employee
benefit plans and programs and compensation plans and programs and consistent
with the Association's customary practices.
SECTION 6. INDEMNIFICATION AND INSURANCE.
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(a) During the Employment Period and for a period of six (6)
years thereafter, the Association shall cause the Executive to be covered by and
named as an insured under any policy or contract of insurance obtained by it to
insure its directors and officers against personal liability for acts or
omissions in connection with service as an officer or director of the
Association or service in other capacities at the request of the Association.
The coverage provided to the Executive pursuant to this section 6 shall be no
less favorable in scope or terms and conditions as the coverage (if any)
provided to other Senior Vice Presidents of the Association.
(b) To the maximum extent permitted under applicable law,
during the Employment Period and for a period of six (6) years thereafter, the
Association shall indemnify the Executive, against and hold him harmless from
any costs, liabilities, losses and exposures to the fullest extent and on the
most favorable terms and conditions that similar indemnification is offered to
any Senior Vice President of the Association or any subsidiary or affiliate
thereof. This section 6(b) shall not be applicable where section 18 is
applicable.
SECTION 7. OUTSIDE ACTIVITIES.
The Executive may serve as a member of the boards of directors
of such business, community and charitable organizations as he may disclose to
and as may be approved by the Board (which approval shall not be unreasonably
withheld); provided, however, that such service shall not materially interfere
with the performance of his duties under this Agreement. The Executive may also
engage in personal business and investment activities which do not materially
interfere with the performance of his duties hereunder; provided, however, that
such activities are not prohibited under any code of conduct or investment or
securities trading policy established by the Association and generally
applicable to all similarly situated executives. The Executive may also serve as
an officer or director of the Company on such terms and conditions as the
Association and the Company may mutually agree upon, and such service shall not
be deemed to materially interfere with the Executive's performance of his duties
hereunder or otherwise to result in a material breach of this Agreement.
SECTION 8. WORKING FACILITIES AND EXPENSES.
The Executive's principal place of employment shall be at the
Association's executive offices at the address first above written, or at such
other location within Queens County or Nassau County, New York at which the
Association shall maintain its principal executive offices, or at such other
location as the Association and the Executive may mutually agree upon. The
Association shall provide the Executive at his principal place of employment
with a private office, secretarial services and other support services and
facilities suitable to his position with the Association and necessary or
appropriate in connection with the performance of his assigned duties under this
Agreement. The Association shall provide to the Executive for his exclusive use
an automobile owned or leased by the Association and appropriate to his
position, to be used in the performance of his duties hereunder, including
commuting to and from his personal residence. The Association shall reimburse
the Executive for his ordinary and necessary business expenses, including,
without limitation, all expenses associated with his business use of the
aforementioned automobile, fees for memberships in such clubs and organizations
as the Executive and the Association shall mutually agree are necessary and
appropriate for business purposes, and his travel and entertainment expenses
incurred in connection
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with the performance of his duties under this Agreement, in each case upon
presentation to the Association of an itemized account of such expenses in such
form as the Association may reasonably require.
SECTION 9. TERMINATION OF EMPLOYMENT WITH SEVERANCE
BENEFITS.
(a) The Executive shall be entitled to the severance benefits
described herein in the event that his employment with the Association
terminates during the Employment Period under any of the following
circumstances:
(i) the Executive's voluntary resignation from employment with
the Association within ninety (90) days following:
(A) the failure of the Board to appoint or re-appoint
or elect or re-elect the Executive to the office of Vice
Chairman and Chief Administrative Officer (or a more senior
office) of the Association;
(B) if the Executive is a member of the Board, the
failure of the stockholders of the Association to elect or
re-elect the Executive to the Board or the failure of the
Board (or the nominating committee thereof) to nominate the
Executive for such election or re-election if the Executive is
a member of the Board on the Effective Date of this Agreement
or thereafter becomes a member of the Board;
(C) the expiration of a thirty (30) day period
following the date on which the Executive gives written notice
to the Association of its material failure, whether by
amendment of the Association's Organization Certificate or
By-laws, action of the Board or the Association's stockholders
or otherwise, to vest in the Executive the functions, duties,
or responsibilities prescribed in section 3 of this Agreement
as of the date hereof, unless, during such thirty (30) day
period, the Association fully cures such failure;
(D) the expiration of a thirty (30) day period
following the date on which the Executive gives written notice
to the Association of its material breach of any term,
condition or covenant contained in this Agreement (including,
without limitation any reduction of the Executive's rate of
base salary in effect from time to time and any change in the
terms and conditions of any compensation or benefit program in
which the Executive participates which, either individually or
together with other changes, has a material adverse effect on
the aggregate value of his total compensation package),
unless, during such thirty (30) day period, the Association
fully cures such failure;
(E) the relocation of the Executive's principal place
of employment, without his written consent, to a location
outside of Nassau
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County and Queens County, New York; or
(ii) the termination of the Executive's employment with the
Association for any other reason not described in section 10(a).
In such event, subject to section 25, the Association shall provide the benefits
and pay to the Executive the amounts described in section 9(b).
(b) Upon the termination of the Executive's employment with
the Association under circumstances described in section 9(a) of this Agreement,
the Association shall pay and provide to the Executive (or, in the event of his
death, to his estate):
(i) his earned but unpaid compensation (including, without
limitation, all items which constitute wages under section 190.1 of the
New York Labor Law and the payment of which is not otherwise provided
for under this section 9(b)) as of the date of the termination of his
employment with the Association, such payment to be made at the time
and in the manner prescribed by law applicable to the payment of wages
but in no event later than thirty (30) days after termination of
employment;
(ii) the benefits, if any, to which he is entitled as a former
employee under the employee benefit plans and programs and compensation
plans and programs maintained for the benefit of the Association's
officers and employees;
(iii) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long term disability
insurance benefits, in addition to that provided pursuant to section
9(b)(ii), and after taking into account the coverage provided by any
subsequent employer, if and to the extent necessary to provide for the
Executive, for the Remaining Unexpired Employment Period, coverage
equivalent to the coverage to which he would have been entitled under
such plans (as in effect on the date of his termination of employment,
or, if his termination of employment occurs after a Change of Control,
on the date of such Change of Control, whichever benefits are greater)
if he had continued working for the Association during the Remaining
Unexpired Employment Period at the highest annual rate of compensation
achieved during that portion of the Employment Period which is prior to
the Executive's termination of employment with the Association;
(iv) within thirty (30) days following his termination of
employment with the Association, a lump sum payment, in an amount equal
to the present value of the salary that the Executive would have earned
if he had continued working for the Association during the Remaining
Unexpired Employment Period at the highest annual rate of salary
achieved during that portion of the Employment Period which is prior to
the Executive's termination of employment with the Association, where
such present value is to be determined using a discount rate equal to
the applicable short-term federal rate prescribed under section 1274(d)
of the Internal Revenue Code of 1986 ("Code"), compounded using the
compounding period corresponding to the
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Association's regular payroll periods for its officers, such lump sum
to be paid in lieu of all other payments of salary provided for under
this Agreement in respect of the period following any such termination;
(v) within thirty (30) days following his termination of
employment with the Association, a lump sum payment in an amount equal
to the excess, if any, of:
(A) the present value of the aggregate benefits to
which he would be entitled under any and all qualified and
non-qualified defined benefit pension plans maintained by, or
covering employees of, the Association) if he were 100% vested
thereunder and had continued working for the Association
during the Remaining Unexpired Employment Period (such
benefits to be determined as of the date of termination of
employment by adding to the service actually recognized under
such plans an additional period equal to the Remaining
Unexpired Employment Period and by adding to the compensation
recognized under such plans for the most recent year
recognized all amounts payable under sections 9(b)(i), (iv),
(vii), (viii) and (ix); over
(B) the present value of the benefits to which he is
actually entitled under such defined benefit pension plans as
of the date of his termination;
where such present values are to be determined using the mortality
tables prescribed under section 415(b)(2)(E)(v) of the Code and a
discount rate, compounded monthly, equal to the annualized rate of
interest prescribed by the Pension Benefit Guaranty Corporation for the
valuation of immediate annuities payable under terminating
single-employer defined benefit plans for the month in which the
Executive's termination of employment occurs ("Applicable PBGC Rate").
(vi) within thirty (30) days following his termination of
employment with the Association, a lump sum payment in an amount equal
to the present value of the additional employer contributions (or if
greater in the case of a leveraged employee stock ownership plan or
similar arrangement, the additional assets allocable to him through
debt service, based on the fair market value of such assets at
termination of employment) to which he would have been entitled under
any and all qualified and non-qualified defined contribution plans
maintained by, or covering employees of, the Association, as if he were
100% vested thereunder and had continued working for the Association
during the Remaining Unexpired Employment Period at the highest annual
rate of compensation achieved during that portion of the Employment
Period which is prior to the Executive's termination of employment with
the Association, and making the maximum amount of employee
contributions, if any, required under such plan or plans, such present
value to be determined on the basis of a discount rate, compounded
using the compounding period that corresponds to the frequency with
which employer frequency with which employer contributions are made to
the relevant plan, equal to the Applicable PBGC Rate;
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(vii) within thirty (30) days following his termination of
employment with the Company, a lump sum payment in an amount equal to
the present value of the payments that would have been made to the
Executive under any cash bonus or long-term or short-term cash
incentive compensation plan maintained by, or covering employees of,
the Association if he had continued working for the Association during
the Remaining Unexpired Employment Period and had earned the maximum
bonus or incentive award in each calendar year that ends during the
Remaining Unexpired Employment Period, such payments to be equal to the
product of:
(A) the maximum percentage rate of annual salary at
which an award was ever available to the Executive under such
incentive compensation plan; multiplied by
(B) the salary that would have been paid to the
Executive during each such calendar year at the highest annual
rate of salary achieved during that portion of the Employment
Period which is prior to the Executive's termination of
employment with the Association:
Where such present value is to be determined using a discount rate
equal to the applicable short-term federal rate prescribed under
section 1274(d) of the Code, compounded annually;
(viii) at the election of the Association made within thirty
(30) days following his termination of employment with the Association,
upon the surrender of options or appreciation rights issued to the
Executive under any stock option and appreciation rights plan or
program maintained by, or covering employees of, the Association, a
lump sum payment in an amount equal to the product of:
(A) the excess of (I) the fair market value of a
share of stock of the same class as the stock subject to the
option or appreciation right, determined as of the date of
termination of employment, over (II) the exercise price per
share for such option or appreciation right, as specified in
or under the relevant plan or program; multiplied by
(B) the number of shares with respect to which
options or appreciation rights are being surrendered.
For purposes of this section 9(b)(viii) and for purposes of determining
the Executive's right following his termination of employment with the
Association to exercise any options or appreciation rights not
surrendered pursuant hereto, the Executive shall be deemed fully vested
in all options and appreciation rights under any stock option or
appreciation rights plan or program maintained by, or covering
employees of, the Association, even if he is not vested under such plan
or program;
(ix) at the election of the Association made within thirty
(30) days
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following the Executive's termination of employment with the
Association, upon the surrender of any shares awarded to the Executive
under any restricted stock plan maintained by, or covering employees
of, the Association, a lump sum payment in an amount equal to the
product of:
(A) the fair market value of a share of stock of the
same class of stock granted under such plan, determined as of
the date of the Executive's termination of employment;
multiplied by
(B) the number of shares which are being
surrendered.
For purposes of this section 9(b)(ix) and for purposes of determining
the Executive's right following his termination of employment with the
Association to any stock not surrendered pursuant hereto, the Executive
shall be deemed fully vested in all shares awarded under any restricted
stock plan maintained by, or covering employees of, the Association,
even if he is not vested under such plan.
The Association and the Executive hereby stipulate that the damages which may be
incurred by the Executive following any such termination of employment are not
capable of accurate measurement as of the date first above written and that the
payments and benefits contemplated by this section 9(b) constitute reasonable
damages under the circumstances and shall be payable without any requirement of
proof of actual damage and without regard to the Executive's efforts, if any, to
mitigate damages. The Association and the Executive further agree that the
Association may condition the payments and benefits (if any) due under sections
9(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Executive's
resignation from any and all positions which he holds as an officer, director or
committee member with respect to the Association, the Company or any subsidiary
or affiliate of either of them.
SECTION 10. TERMINATION WITHOUT ADDITIONAL ASSOCIATION
LIABILITY.
In the event that the Executive's employment with the
Association shall terminate during the Employment Period on account of:
(a) the discharge of the Executive for "cause," which, for purposes of
this Agreement shall mean personal dishonesty, incompetence, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties, willful violation of any law, rule or regulation (other
than traffic violations or similar offenses) or final cease and desist order, or
any material breach of this Agreement, in each case as measured against
standards generally prevailing at the relevant time in the savings and community
banking industry; provided, however, that the Executive shall not be deemed to
have been discharged for cause unless and until he shall have received a written
notice of termination from the Board, accompanied by a resolution duly adopted
by affirmative vote of a majority of the entire Board at a meeting called and
held for such purpose (after reasonable notice to the Executive and a reasonable
opportunity for the Executive to make oral and written presentations to the
members of the Board, on his own behalf, or through a representative, who may be
his legal counsel, to refute the grounds for the proposed determination) finding
that in the good faith opinion of the Board grounds exist for discharging the
Executive for
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cause; or
(b) the Executive's voluntary resignation from employment with
the Association for reasons other than those specified in section 9(a)(i);
(c) the Executive's death;
(d) a determination that the Executive is eligible for
long-term disability benefits under the Association's long-term disability
insurance program or, if there is no such program, under the federal Social
Security Act; or
(e) the Executive's termination of employment for any reason
at or after attainment of mandatory retirement age under the Association's
mandatory retirement policy for executive officers in effect as of the Effective
Date of this Agreement;
then the Association shall have no further obligations under this Agreement,
other than the payment to the Executive (or, in the event of his death, to his
estate) of his earned but unpaid compensation as of the date of the termination
of his employment, and the provision of such other benefits, if any, to which he
is entitled as a former employee under the employee benefit plans and programs
and compensation plans and programs maintained by, or covering employees of, the
Association.
SECTION 11. TERMINATION UPON OR FOLLOWING A CHANGE OF
CONTROL.
(a) A Change of Control of the Association ("Change of
Control") shall be deemed to have occurred upon the happening of any of the
following events:
(i) approval by the stockholders of the Association of a
transaction that would result in the reorganization, merger or
consolidation of the Association, respectively, with one or more other
persons, other than a transaction following which:
(A) at least 51 % of the equity ownership interests
of the entity resulting from such transaction are beneficially
owned (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) in substantially the same relative proportions
by persons who, immediately prior to such transaction,
beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) at least 51% of the
outstanding equity ownership interests in the Association; and
(B) at least 51% of the securities entitled to vote
generally in the election of directors of the entity resulting
from such transaction are beneficially owned (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) in
substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) at least 51% of the
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securities entitled to vote generally in the election of
directors of the Association;
(ii) the acquisition of all or substantially all of the assets
of the Association or beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of the
outstanding securities of the Association entitled to vote generally in
the election of directors by any person or by any persons acting in
concert, or approval by the stockholders of the Association of any
transaction which would result in such an acquisition; or
(iii) a complete liquidation or dissolution of the
Association, or approval by the stockholders of the Association of a
plan for such liquidation or dissolution; or
(iv) the occurrence of any event if, immediately following
such event, at least 50% of the members of the board of directors of
the Association do not belong to any of the following groups:
(A) individuals who were members of the Board of the
Association on the Effective Date of this Agreement; or
(B) individuals who first became members of the Board
of the Association after the Effective Date of this Agreement
either:
(I) upon election to serve as a member of
the Board of directors of the Association by
affirmative vote of three-quarters of the members of
such board, or of a nominating committee thereof, in
office at the time of such first election; or
(II) upon election by the stockholders of
the Board to serve as a member of the board of
directors of the Board, but only if nominated for
election by affirmative vote of three-quarters of the
members of the board of directors of the Board, or of
a nominating committee thereof, in office at the time
of such first nomination;
provided, however, that such individual's election or
nomination did not result from an actual or threatened
election contest (within the meaning of Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents
(within the meaning of Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) other than by or on behalf
of the Board of the Association;
(v) any event which would be described in section 11(a)(i),
(ii), (iii) or (iv) if the term "Company" were substituted for the term
"Association" therein.
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In no event, however, shall a Change of Control be deemed to have occurred as a
result of any acquisition of securities or assets of the Company, the
Association, or any subsidiary of any of them, by the Company, the Association,
or a subsidiary of either of them, or by any employee benefit plan maintained by
any of them. For purposes of this section 11 the term "person" shall have the
meaning assigned to it under sections 13(d)(3) or 14(d)(2) of the Exchange Act.
(b) In the event of a Change of Control, the Executive shall
be entitled to the payments and benefits contemplated by section 9(b) in the
event of his termination employment with the Association under any of the
circumstances described in section 9(a) of this Agreement or under any of the
following circumstances:
(i) resignation, voluntary or otherwise, by the Executive at
any time during the Employment Period and within ninety (90) days
following his demotion, loss of title, office or significant authority
or responsibility, or following any reduction in any element of his
package of compensation and benefits;
(ii) resignation, voluntary or otherwise, by the Executive at
any time during the Employment Period and within ninety (90) days
following any relocation of his principal place of employment or any
change in working conditions at such principal place of employment
which is embarrassing, derogatory or otherwise materially adverse;
(iii) resignation, voluntary or otherwise, by the Executive at
any time during the Employment Period following the failure of any
successor to the Association in the Change of Control to include the
Executive in any compensation or benefit program maintained by it or
covering any of its executive officers, unless the Executive is already
covered by a substantially similar plan of the Association which is at
least as favorable to him; or
(iv) resignation, voluntary or otherwise, for any reason
whatsoever following the expiration of a transition period of thirty
days beginning on the effective date of the Change of Control (or such
longer period, not to exceed ninety (90) days beginning on the
effective date of the Change in Control, as the Association or its
successor may reasonably request) to facilitate a transfer of
management responsibilities.
SECTION 12. COVENANT NOT TO COMPETE.
The Executive hereby covenants and agrees that, in the event
of his termination of employment with the Association prior to the expiration of
the Employment Period, for a period of one (1) year following the date of his
termination of employment with the Association (or, if less, for the Remaining
Unexpired Employment Period), he shall not, without the written consent of the
Association, become an officer, employee, consultant, director or trustee of any
savings bank, savings and loan association, savings and loan holding company,
bank or bank holding company, or any direct or indirect subsidiary or affiliate
of any such entity, that entails working in any city, town or county
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in which the Association or the Company has an office or has filed an
application for regulatory approval to establish an office, determined as of the
effective date of the Executive's termination of employment; provided, however,
that this section 12 shall not apply if the Executive's employment is terminated
for the reasons set forth in section 9(a); and provided, further, that if the
Executive's employment shall be terminated on account of disability as provided
in section 10(d) of this Agreement, this section 12 shall not prevent the
Executive from accepting any position or performing any services if (a) he first
offers, by written notice, to accept a similar position with, or perform similar
services for, the Association on substantially the same terms and conditions and
(b) the Association declines to accept such offer within ten (10) days after
such notice is given.
SECTION 13. CONFIDENTIALITY.
Unless he obtains the prior written consent of the
Association, the Executive shall keep confidential and shall refrain from using
for the benefit of himself, or any person or entity other than the Association
or any entity which is a subsidiary of the Association or of which the
Association is a subsidiary, any material document or information obtained from
the Association, or from its parent or subsidiaries, in the course of his
employment with any of them concerning their properties, operations or business
(unless such document or information is readily ascertainable from public or
published information or trade sources or has otherwise been made available to
the public through no fault of his own) until the same ceases to be material (or
becomes so ascertainable or available); provided, however, that nothing in this
section 13 shall prevent the Executive, with or without the Association's
consent, from participating in or disclosing documents or information in
connection with any judicial or administrative investigation, inquiry or
proceeding to the extent that such participation or disclosure is required under
applicable law.
SECTION 14. SOLICITATION.
The Executive hereby covenants and agrees that, for a period
of one (1) year following his termination of employment with the Association, he
shall not, without the written consent of the Association, either directly or
indirectly:
(a) solicit, offer employment to, or take any other action
intended, or that a reasonable person acting in like circumstances would expect,
to have the effect of causing any officer or employee of the Association, the
Company or any affiliate, as of the Effective Date of this Agreement, of either
of them to terminate his or her employment and accept employment or become
affiliated with, or provide services for compensation in any capacity whatsoever
to, any savings bank, savings and loan association, bank, bank holding company,
savings and loan holding company, or other institution engaged in the business
of accepting deposits and making loans, doing business in any city, town or
county in which the Association or the Company has an office or has filed an
application for regulatory approval to establish an office, determined as of the
Effective Date of this Agreement;
(b) provide any information, advice or recommendation with
respect to any such officer or employee to any savings bank, savings and loan
association, bank, bank holding company, savings and loan holding company, or
other institution engaged in the business of accepting deposits
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and making loans, doing business in any city, town or county in which the
Association or the Company has an office or has filed an application for
regulatory approval to establish an office, determined as of the Effective Date
of this Agreement, of either of them that is intended, or that a reasonable
person acting in like circumstances would expect, to have the effect of causing
any officer or employee of the Association, the Company or any affiliate, as of
the Effective Date of this Agreement, of either of them to terminate his or her
employment and accept employment or become affiliated with, or provide services
for compensation in any capacity whatsoever to, such savings bank, savings and
loan association, bank, bank holding company, savings and loan holding company,
or other institution;
(c) solicit, provide any information, advice or recommendation
or take any other action intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any customer of the
Association to terminate an existing business or commercial relationship with
the Association.
SECTION 15. NO EFFECT ON EMPLOYEE BENEFIT PLANS OR
PROGRAMS.
The termination of the Executive's employment during the term
of this Agreement or thereafter, whether by the Association or by the Executive,
shall have no effect on the rights and obligations of the parties hereto under
the Association's qualified or non-qualified retirement, pension, savings,
thrift, profit-sharing or stock bonus plans, group life, health (including
hospitalization, medical and major medical), dental, accident and long term
disability insurance plans or such other employee benefit plans or programs, or
compensation plans or programs, as may be maintained by, or cover employees of,
the Association from time to time.
SECTION 16. SUCCESSORS AND ASSIGNS.
This Agreement will inure to the benefit of and be binding
upon the Executive, his legal representatives and testate or intestate
distributees, and the Association and its successors and assigns, including any
successor by merger or consolidation or any other person or firm or corporation
to which all or substantially all of the assets and business of the Association
may be sold or otherwise transferred. Failure of the Association to obtain from
any successor its express written assumption of the Association's obligations
hereunder at least sixty (60) days in advance of the scheduled effective date of
any such succession shall be deemed a material breach of this Agreement unless
cured within ten (10) days after notice thereof by the Executive to the
Association.
SECTION 17. NOTICES.
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five (5) days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
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If to the Executive:
Xx. Xxxxxx X. Xxxxxx
00 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx
If to the Association:
Astoria Federal Savings and Loan Association
Xxx Xxxxxxx Xxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000-0000
Attention: General Counsel
with a copy to:
Xxxxxxx Xxxxxxxx & Wood
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. Xxxxxx Xxxxxx, Esq.
SECTION 18. INDEMNIFICATION FOR ATTORNEYS' FEES.
The Association shall indemnify, hold harmless and defend the
Executive against reasonable costs, including legal fees, incurred by him in
connection with 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; provided, however, that the Executive shall have
substantially prevailed on the merits pursuant to a judgment, decree or order of
a court of competent jurisdiction or of an arbitrator in an arbitration
proceeding, or in a settlement. For purposes of this Agreement, any settlement
agreement which provides for payment of any amounts in settlement of the
Association's obligations hereunder shall be conclusive evidence of the
Executive's entitlement to indemnification hereunder, and any such
indemnification payments shall be in addition to amounts payable pursuant to
such settlement agreement, unless such settlement agreement expressly provides
otherwise.
SECTION 19. SEVERABILITY.
A determination that any provision of this Agreement is
invalid or unenforceable shall not affect the validity or enforceability of any
other provision hereof.
SECTION 20. WAIVER.
Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision
15
of this Agreement must be made in writing, designated as a waiver, and signed by
the party against whom its enforcement is sought. Any waiver or relinquishment
of any right or power hereunder at any one or more times shall not be deemed a
waiver or relinquishment of such right or power at any other time or times.
SECTION 21. COUNTERPARTS.
This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
SECTION 22. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced
in accordance with the federal laws of the United States and, to the extent that
federal law is inapplicable, in accordance with the laws of the State of New
York applicable to contracts entered into and to be performed entirely within
the State of New York.
SECTION 23. HEADINGS AND CONSTRUCTION.
The headings of sections in this Agreement are for convenience
of reference only and are not intended to qualify the meaning of any section.
Any reference to a section number shall refer to a section of this Agreement,
unless otherwise stated.
SECTION 24. ENTIRE AGREEMENT: MODIFICATIONS.
This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and supersedes in its entirety any and
all prior agreements, understandings or representations relating to the subject
matter hereof. No modifications of this Agreement shall be valid unless made in
writing and signed by the parties hereto.
SECTION 25. SURVIVAL.
The provisions of sections 6, 9, 10, 11, 12, 13, 14, 15, 17,
18, 20 and 27 shall survive the expiration of the Employment Period or
termination of this Agreement.
SECTION 26. EQUITABLE REMEDIES.
The Company and the Executive hereby stipulate that money
damages are an inadequate remedy for violations of sections 6(a), 12, 13 or 14
of this Agreement and agree that equitable remedies, including, without
limitations, the remedies of specific performance and injunctive relief, shall
be available with respect to the enforcement of such provisions.
SECTION 27. REQUIRED REGULATORY PROVISIONS.
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The following provisions are included for the purposes of
complying with various laws, rules and regulations applicable to the
Association:
(a) Notwithstanding anything herein contained to the contrary,
in no event shall the aggregate amount of compensation payable to the Executive
under section 9(b) hereof (exclusive of amounts described in section 9(b)(i),
(viii) and (ix)) exceed the three times the Executive's average annual total
compensation for the last five consecutive calendar years to end prior to his
termination of employment with the Association (or for his entire period of
employment with the Association if less than five calendar years).
(b) Notwithstanding anything herein contained to the contrary,
any payments to the Executive by the Association, whether pursuant to this
Agreement or otherwise, are subject to and conditioned upon their compliance
with section 18(k) of the Federal Deposit Insurance Act ("FDI Act"), 12 U.S.C.
ss.1828(k), and any regulations promulgated thereunder.
(c) Notwithstanding anything herein contained to the contrary,
if the Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the affairs of the Association pursuant to a
notice served under section 8(e)(3) or 8(g)(1) of the FDI Act, 12 U.S.C. section
1818(e)(3) or section 1818(g)(1), the Association's obligations under this
Agreement shall be suspended as of the date of service of such notice, unless
stayed by appropriate proceedings. If the charges in such notice are dismissed,
the Association, in its discretion, may (i) pay to the Executive all or part of
the compensation withheld while the Association's obligations hereunder were
suspended and (ii) reinstate, in whole or in part, any of the obligations which
were suspended.
(d) Notwithstanding anything herein contained to the contrary,
if the Executive is removed and/or permanently prohibited from participating in
the conduct of the Association's affairs by an order issued under section
8(e)(4) or 8(g)(1) of the FDI Act, 12 U.S.C sections 1818(e)(4) or (g)(1), all
prospective obligations of the Association under this Agreement shall terminate
as of the effective date of the order, but vested rights and obligations of the
Association and the Executive shall not be affected.
(e) Notwithstanding anything herein contained to the contrary,
if the Association is in default (within the meaning of section 3(x)(1) of the
FDI Act, 12 U.S.C. section 1813(x)(1), all prospective obligations of the
Association under this Agreement shall terminate as of the date of default, but
vested rights and obligations of the Association and the Executive shall not be
affected.
(f) Notwithstanding anything herein contained to the contrary,
all prospective obligations of the Association hereunder shall be terminated,
except to the extent that a continuation of this Agreement is necessary for the
continued operation of the Association: (i) by the Director of the Office of
Thrift Supervision ("OTS") or his designee or the Federal Deposit Insurance
Corporation ("FDIC"), at the time the FDIC enters into an agreement to provide
assistance to or on behalf of the Association under the authority contained in
section 13(c) of the FDI Act, 12 U.S.C. ss.1823(c); (ii) by the Director of the
OTS or his designee at the time such Director or designee approves a supervisory
merger to resolve problems related to the operation of the Association or when
the Association is determined by such Director to be in an unsafe or unsound
condition. The
17
vested rights and obligations of the parties shall not be affected.
If and to the extent that any of the foregoing provisions shall cease to be
required or by applicable law, rule or regulation, the same shall become
inoperative as though eliminated by formal amendment of this Agreement.
SECTION 28. EFFECTIVE DATE.
The Effective Date of this Agreement shall be the date of
closing of the merger of The Greater New York Savings Bank with and into the
Association pursuant to the Agreement and Plan of Merger dated March 29, 1997 by
and among the Company, the Association and The Greater New York Savings Bank
("Merger Agreement"). This Agreement shall have no force or effect prior to the
Effective Date and, on the Effective Date, shall not take effect until the
Effective Time (as such term is defined in the Merger Agreement). In the event
that the merger contemplated by the Merger Agreement is not consummated, this
Agreement shall have no force or effect.
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IN WITNESS WHEREOF, the Association has caused this Agreement
to be executed and the Executive has hereunto set his hand, all as of the day
and year first above written.
ATTEST: ASTORIA FEDERAL SAVINGS
AND LOAN ASSOCIATION
By
--------------------
Secretary By /s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President and Chief Executive Officer
[Seal]
/s/ Xxxxxx X. Xxxxxx
-------------------------------
XXXXXX X. XXXXXX
19
STATE OF NEW YORK )
:ss.:
COUNTY OF NASSAU )
On this ---- day of ---------, 1997, before me personally came
Xxxxxx X. Xxxxxx, to me known, and known to me to be the individual described in
the foregoing instrument, who, being by me duly sworn, did depose and say that
he resides at the address set forth in said instrument, and that he signed his
name to the foregoing instrument.
--------------------
Notary Public
STATE OF NEW YORK )
:ss.:
COUNTY OF NASSAU )
On this ---- day of ---------, 1997, before me personally came
Xxxxxx X. Xxxxxxx, Xx., to me known, who, being by me duly sworn, did depose and
say that he resides at , that he is President and Chief Executive Officer
of ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION, the savings institution
described in and which executed the foregoing instrument; that he knows the seal
of said institution; that the seal affixed to said instrument is such seal; that
it was so affixed by order of the Board of Directors of said institution; and
that he signed his name thereto by like order.
--------------------
Notary Public
