EMPLOYMENT AGREEMENT
Exhibit 10.16
EXECUTION VERSION
This Employment Agreement (the “Agreement”) is made and entered into as of April 24, 2021, by and between New York Community Bancorp, Inc., a Delaware corporation (together with its subsidiaries, the “Company”) and Xxx Xxxxx (the “Executive”). The Company and Executive are referred to collectively as the “Parties” and individually as a “Party.”
WHEREAS, the Company is entering into that certain Agreement and Plan of Merger, dated as of April 24, 2021, between the Company and Flagstar Bancorp, Inc. (“Flagstar”), a Michigan corporation (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), and effective as of the closing of the transactions contemplated by the Merger Agreement (the “Closing”), Flagstar will merge with and into the Company, with the Company being the surviving entity;
WHEREAS, the Company desires to employ Executive as Senior Executive Vice President of the Company and President of Mortgage New York Community Bank (the “Bank”), and Executive desires to assume such positions, in each case, subject to and contingent upon the occurrence of the Closing and on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, promises, and obligations set forth herein, the Parties agree as follows:
2.1 Position. During the Employment Term, Executive shall serve as the Senior Executive Vice President of the Company and President of Mortgage of the Bank.
2.2 Duties. During the Employment Term, Executive shall have such duties, authorities, and responsibilities commensurate with his positions and such other duties and responsibilities consistent with Executive’s positions as shall be determined from time to time by the Board of Directors of the Company (the “Board”) or the Chief Executive Officer of the Company. Executive shall faithfully perform the duties of his employment and shall devote substantially all of his business time and attention to the performance of such duties. Executive will not engage in any other business, profession, or occupation for compensation or otherwise which would
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conflict or interfere with the performance of such services, directly or indirectly, without the prior written consent of the Board.
Notwithstanding the foregoing, Executive will be permitted to (a) act or serve as a director, trustee, committee member, or principal of any type of business, civic, or charitable organization in accordance with the Company’s applicable conflict of interest policy, and (b) purchase or own less than five percent (5%) of the publicly traded securities of any corporation; provided that, such ownership represents a passive investment and that Executive is not a controlling person of, or a member of a group that controls, such corporation; provided further that, activities described in clauses (a) and (b) above do not interfere with the performance of Executive’s duties. If requested by the Board, Executive shall serve as an executive officer and/or as a director of each of the Company’s subsidiaries which are material to the business of the Company as determined by the Board in its sole discretion (collectively, the “Material Subsidiaries”).
4.1 Base Salary. Executive’s annual rate of base salary shall be $900,000 (the “Base Salary”). The Company shall pay the Base Salary in periodic installments in accordance with its payroll practices. The Base Salary shall be reviewed at least annually by the Board, or a committee thereof, and may be increased (but not decreased).
4.2 Annual Bonus. Executive shall be eligible to participate in the Company’s short term cash incentive program on the same basis as other senior executives of the Company.
Executive’s target annual cash incentive opportunity shall not be less than 125% of Base Salary (the “Target Bonus”).
4.3 Retention Award. Subject to the terms of this Agreement, Executive will receive a one-time retention award of restricted stock with a grant date fair value of $3,375,000 (the “Retention Award”), which will vest and become unrestricted 20% per year on each of the first through the fifth anniversaries of the Closing, subject to Executive’s continued employment with the Company through each applicable vesting date, unless earlier vested upon a qualifying termination event provided for in Sections 5.2, 5.3, or 5.4. Executive acknowledges and agrees that the Retention Award will be granted in lieu of any cash severance amounts that Executive would have been entitled to receive upon any qualifying termination of employment under that certain Amended and Restated Employment Agreement entered into by and between Executive and Flagstar effective as of May 21, 2019 (the “Flagstar Employment Agreement”), and any other severance plans or programs of Flagstar or the Company, and Executive hereby expressly waives all rights to any payments and/or benefits under the Flagstar Employment Agreement, and any other such plans or programs. For the avoidance of doubt, the Executive will not be eligible for, and will not receive, any payments or benefits under any otherwise applicable severance plans or programs of, the Company unless expressly provided for following the date of the Closing or as otherwise mutually agreed between the Parties.
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4.4 Equity Awards. Executive shall be eligible to participate in the Company’s long term equity incentive program and receive annual equity award grants on the same basis as other senior executives of the Company, as may be determined by the Board from time to time in its sole discretion. The terms and conditions of any such additional equity awards will be subject to the terms of the applicable plan and any applicable award documents.
4.5 Fringe Benefits and Employee Benefits. Executive shall be entitled to participate in the employee benefit plans, practices, and programs maintained by the Company, as in effect from time to time, that are generally available to other senior executive employees of the Company, including retirement plans, supplemental retirement plans, deferred compensation plans, life insurance plans, medical insurance plans, dental plans, accidental death and disability plans, and other fringe benefits.
4.6 Business Expenses. Executive shall be entitled to reimbursement for all reasonable business expenses incurred in connection with the performance of Executive’s duties hereunder in accordance with the Company’s business expense reimbursement policies and procedures as in effect from time to time.
4.7 Car. The Company shall reimburse Executive for the costs of leasing an automobile in an amount authorized by the Compensation Committee, per calendar year.
4.8 Club Membership. The Company shall pay for, or reimburse Executive for, dues, assessments, special assessments and normal business expenses for membership of Executive at the (i) Detroit Athletic Club and (ii) the Birmingham Country Club in accordance with the Company’s business expense reimbursement policies and procedures as in effect from time to time.
4.9 Indemnification and Directors and Officers Liability Insurance. The Company shall, to the fullest extent permitted by applicable law, indemnify Executive with respect to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (whether or not such action, suit or proceeding arises or arose by or in the right of the Company or other entity) by reason of the fact that Executive is or was a director or officer of the Company or of any subsidiary of the Company or is or was serving at the request of the Company as a director, officer, employee, general partner, agent or fiduciary of another corporation, partnership, joint venture, trust or other enterprise (including service with respect to employee benefit plans), against expenses, (including, but not limited to, attorneys’ fees and costs), judgments, fines (including excise taxes assessed on a person with respect to any employee benefit plan) and amounts paid in settlement actually and reasonably incurred by such director or officer in connection with such action, suit or proceeding, which amounts the Company will advance to Executive as the same are incurred; however, Executive shall repay any expenses paid or reimbursed by the Company if it is ultimately determined by order of a court of competent jurisdiction (without further right of appeal) that Executive is not legally entitled to be indemnified by the Company. If applicable law requires that the Board make an investigation and/or determination of the matter for which indemnification is being sought prior to paying or reimbursing Executive, the Company shall use its commercially reasonable efforts to cause the investigation to be made (at the Company’s expense) and to have the Board reach a determination as soon as reasonably possible. During the Employment Term, the Company shall maintain directors and officers liability insurance with coverage limits of at least the amount in effect on the date hereof. The Company’s obligations to indemnify Executive and to advance or reimburse expenses provided by this Section shall continue after the termination of this
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Agreement or Executive’s employment for any reason. The rights to indemnification and advancement or reimbursement of expenses provided by this Section shall not be deemed exclusive of any other rights to which Executive may be entitled under any charter, bylaw, other organization document, agreement, vote of shareholders or directors or otherwise.
5. Termination of Employment. The Employment Term and Executive’s employment hereunder may be terminated prior to the expiration of the Employment Term by either the Company or Executive at any time and for any reason. Upon termination of Executive’s employment during or at the end of the Employment Term, Executive shall be entitled to the compensation and benefits in accordance with this Section 5.
5.1 Termination of Employment for Cause or without Good Reason.
(a) Executive’s employment hereunder may be terminated by the Company for Cause or by Executive without Good Reason. If Executive’s employment is terminated by the Company for Cause or by Executive without Good Reason, Executive shall be entitled to receive:
Items 5.1(a)(i) through 5.1(a)(v) are referred to herein collectively as the “Accrued Amounts.”
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Executive’s termination of employment shall not be deemed to be for Cause unless and until the Board delivers to Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of the Board (after reasonable advance written notice (and in any event not less than ten (10) days notice) is provided to Executive setting forth in reasonable detail the specific conduct alleged to constitute Cause and which clause of the Cause definition is at issue and Executive is given an opportunity, together with legal counsel, to be heard before the Board prior to the vote on such resolution), finding that Executive has engaged in the conduct set forth in clauses (i) to and including (v) above. Executive shall have thirty (30) business days from the delivery of written notice by the Board within which to cure acts set forth in clauses (i) to (v) above.
Executive cannot terminate his employment for Good Reason unless Executive: (A) gives the Company written notice of his objection to such above-described event or condition within ninety (90) days following the occurrence of such event or condition, (B) such event or condition is not corrected, in all material respects, by the Company within thirty (30) days following the Company’s receipt of such notice (or if such event or condition is not susceptible to correction within such 30-day period, the Company has not taken all reasonable steps within such 30-day period to correct such event or condition as promptly as practicable thereafter) and (C) Executive resigns his employment not more than thirty (30) days following the expiration of the 30-day period described in the foregoing clause (B); provided, however, that, notwithstanding the foregoing, Executive shall not be required to provide written notice with respect to the event
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described in clause (vi) above and Executive shall have sixty (60) days following receipt of the Non-Renewal Notice to resign his employment.
5.2 Termination of Employment without Cause or for Good Reason other than in connection with to a Change in Control. In the event that Executive’s employment under this Agreement is terminated by Executive for Good Reason or by the Company without Cause other than in connection with a Change in Control (as defined below) pursuant to Section 5.4 below, Executive shall be entitled to receive the Accrued Amounts and, subject to Executive’s timely execution and delivery of the Release and such Release becoming effective following the Termination Date in accordance with its terms (the period between the Termination Date and the date that the Release becomes effective, the “Release Execution Period”), Executive shall be entitled to receive the following:
(i) any unvested portion of the Retention Award shall become fully vested and unrestricted;
(ii) all other outstanding equity-based compensation awards shall become fully vested and the restrictions thereon shall lapse (provided that for performance-based equity awards, if any, payment will be based on the actual performance achieved for such awards as of the date of termination) and all such awards shall be paid or settled (as applicable) within sixty (60) days following the Termination Date; provided that, any delays in the settlement or payment of such awards that are set forth in the applicable award documents and that are required under Section 409A of the Internal Revenue Code shall remain in effect.
5.3 Death or Disability.
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(a) Executive’s employment hereunder shall terminate automatically upon Executive’s death during the Employment Term, and the Company or Executive may terminate Executive’s employment on account of Executive’s Disability.
(b) If Executive’s employment is terminated during the Employment Term on account of Executive’s death or Disability, Executive (or Executive’s estate and/or beneficiaries, as the case may be) shall be entitled to receive the Accrued Amounts.
(c) Notwithstanding the terms of the applicable plan or any award documents:
(d) For purposes of this Agreement, “Disability” shall mean Executive becomes entitled to receive long-term disability benefits under the Company long-term disability plan applicable to Executive.
5.4 Termination of Employment without Cause or for Good Reason in Connection with a Change in Control. In the event that Executive’s employment hereunder is terminated by Executive for Good Reason or by the Company without Cause at any time during the period beginning three (3) months before and ending on the 12-month anniversary of a Change in Control, Executive shall be entitled to receive the Accrued Amounts and, subject to Executive’s execution and delivery of the Release and such Release becoming effective, Executive shall be entitled to receive the following:
(a) a lump sum payment equal to two (2) times the sum of Executive’s Base Salary and Target Bonus for the fiscal year in which the Termination Date occurs, which shall be paid within sixty (60) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year;
(b) the Company shall reimburse Executive monthly for the cost of a health insurance policy covering Executive and his dependents with substantially similar coverage that Executive had prior to the Termination Date ) (which would include health continuation coverage under COBRA if so elected by Executive and to the extent available), until the earliest of: (i) the eighteen (18) month anniversary of the Termination Date; and (ii) the date on which Executive becomes eligible for health care coverage from a subsequent employer. Notwithstanding the foregoing, if the Company’s making payments under this Section 5.4(b) would violate the nondiscrimination rules applicable to non-grandfathered plans under the ACA, or result in the imposition of penalties under the ACA and the related regulations and guidance promulgated thereunder), the parties agree to reform this Section 5.4(b) in a manner as is necessary to comply with the ACA; and
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(c) notwithstanding the terms of the applicable plan or any award documents:
(d) In the event Executive is entitled to benefits under this Section 5.4, then this Section 5.4 shall supersede Section 5.2.
For purposes of this Agreement, “Change in Control” is defined as the occurrence of a “Change in Control” as defined by the Company’s 2020 Omnibus Incentive Plan.
5.5 Notice of Termination. Any termination of Executive’s employment hereunder (other than termination pursuant to Section 5.3(a) on account of Executive’s death) shall be communicated by written notice of termination (“Notice of Termination”) to the other Parties hereto in accordance with Section 20. The Notice of Termination shall specify:
5.6 Termination Date. Executive’s “Termination Date” shall be:
(a) If Executive’s employment terminates on account of Executive’s death, the date of the Executive’s death;
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Notwithstanding anything contained herein, the Termination Date shall not occur until the date on which Executive incurs a “separation from service” within the meaning of Section 409A.
5.7 Mitigation. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and except as provided in Sections 5.2(b) and 5.4(c) (with respect to medical insurance continuation), any amounts payable pursuant to this Section 5 shall not be reduced by compensation Executive earns on account of employment with another employer.
5.8 Regulatory Actions.
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 contracting parties.
(d) All obligations under this Agreement shall be terminated, except to the extent determined that continuation of this Agreement is necessary for the continued operation of the Bank:
Any rights of the parties that have already vested, however, shall not be affected by such action.
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An arbitrator’s award must be in writing, with specific findings of fact, and will be enforceable by judgment entered upon the award in any court having jurisdiction. In reaching any decision, the arbitrator will interpret and be bound by this Agreement (and cannot add or disregard any provision of this Agreement) as well as applicable federal, state or local law. Any arbitration will provide each Party with all substantive rights and remedies provided under any applicable federal or state law related to such claim, including but not limited to, any legal or equitable remedy available in a court of competent jurisdiction such as money damages and legal fees. In the event of a conflict between this Agreement and any policy, rule or practice of the Company or the AAA, the arbitrator is bound by the terms of this Agreement. Nothing in this agreement to arbitrate precludes the Company or Executive from seeking temporary or permanent injunctive or declaratory relief from a court of competent jurisdiction relative to any alleged breach of an applicable non-compete or trade secret agreement between the Parties. Neither Party shall be entitled to: (i) join or consolidate claims in arbitration by or against other executives, (ii) arbitrate any claim against the other party as a representative or member of a class or collective action, or (iii) arbitrate any claim in a private attorney general capacity.
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17.1 General Compliance. This Agreement is intended to comply with Section 409A of the Internal Revenue Code and any regulations or guidance promulgated thereunder
(“Section 409A”) or an exemption thereunder and shall be construed and administered in accordance with Section 409A. Notwithstanding any other provision of this Agreement, payments provided under this Agreement may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement
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that may be excluded from Section 409A either as “separation pay” or as a “short-term deferral” shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement shall be treated as a separate payment. Any payments to be made under this Agreement upon a termination of employment shall only be made upon a “separation from service” under Section 409A. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A, and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest, or other expenses that may be incurred by Executive on account of non-compliance with Section 409A.
17.2 Specified Employees. Notwithstanding any other provision of this Agreement, if any payment or benefit provided to Executive in connection with his termination of employment is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A and Executive is determined to be a “specified employee” as defined in Section 409A(a)(2)(b)(i), then such payment or benefit shall not be paid until the first payroll date to occur following the six-month anniversary of the Termination Date or, if earlier, on Executive’s death (the “Specified Employee Payment Date”). The aggregate of any payments that would otherwise have been paid before the Specified Employee Payment Date shall be paid to Executive in a lump sum on the Specified Employee Payment Date and thereafter, any remaining payments shall be paid without delay in accordance with their original schedule.
17.3 Reimbursements. To the extent required by Section 409A, each reimbursement or in-kind benefit provided under this Agreement shall be provided in accordance with the following:
(a) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year;
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If to the Company:
New York Community Bancorp, Inc.
000 Xxxxxxx Xxxxxx
Westbury, New York 11590
Attention: Chief Executive Officer
If to Executive:
At the last address on file with the Company.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
NEW YORK COMMUNITY BANCORP, INC.
By:
Xxxx X. Xxxxxx
Executive Vice President and
Chief Human Resources Officer
EXECUTIVE
Xxx X. Xxxxx
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Exhibit A
SEPARATION AGREEMENT AND MUTUAL GENERAL RELEASE OF CLAIMS
This SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS (The “Agreement”) is made between Xxx X. Xxxxx (“Executive”) and New York Community Bancorp, Inc. (“Employer”) for the benefit of New York Community Bancorp, Inc., and is effective as of the Effective Date stated below.
Executive was employed as an at-will Executive of Employer and Executive’s employment will end on or about <<Termination_Date>>. In connection with Executive’s separation of employment, Employer offered Executive separation pay and other good and valuable consideration in return for a release of all claims and other terms. Executive shall have [twenty-one (21)/forty-five (45) calendar days] after the Termination Date to execute and deliver this Agreement (and not revoke it) or he/she will no longer be entitled to receive the separation pay and benefits set forth herein.
THEREFORE, in consideration of the mutual promises and payment set forth below, the receipt and adequacy of which is acknowledged, the parties agree as follows:
eligibility for all benefits provided by Employer will end on . Except as specifically provided in this Agreement, the Non-Competition, Non-Solicitation and Confidential Information Agreement dated as of [•], and any written agreement signed by Executive concerning the protection of trade secrets or intellectual property belonging to the Employer, all other agreements, contracts, commitments and understandings between Executive and Employer, whether oral or written, concerning the subject matter of this Agreement are superseded by this Agreement.
A. Separation Pay: As noted in Section 5.2 of the Employment Agreement dated [•].
Executive agrees that payments and benefits described in the above paragraphs provided by Employer are good and valuable consideration for this Agreement and Executive’s release of claims, and are in excess of any earned wages, benefits or other amounts to which Executive is entitled as of the Date of Termination. Executive further acknowledges and warrants that Executive has received all wages, bonuses, overtime, vacation pay and other benefits and compensation due or owing by virtue of Executive’s employment, and further specifically warrants and agrees that he or she received all leaves of absences, including but not limited to, all FMLA leave, and all paid or unpaid time off that Executive requested or was otherwise eligible for while employed by Employer. Executive agrees to promptly pay in full all federal, state or local taxes due or owed on any separation payments made pursuant to this Agreement.
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(A) Executive fully, completely and forever releases and discharges Employer, its current or former parent corporations, units, divisions, subsidiaries, foundations, benefit plans, related or affiliated entities, and all current or former officers, directors, shareholders, employees, donors, agents, attorneys, plan administrators, fiduciaries, successors and assigns of Employer, and any entity or unit described above (collectively referred to as “Released Parties”) from any and all claims, appeals, controversies, disputes, issues, allegations, loss of services, attorneys’ fees, liabilities, grievances, damages and causes of action of any kind, nature or description, arising from any act, omission, conduct, fact or circumstance existing as of the date Executive signs this Agreement.
This release includes, but is not limited to, all workplace disputes, issues or allegations, and all claims or allegations for unpaid compensation, unreimbursed expenses, bonuses, stock options, wrongful discharge, breach of contract, negligence, defamation, fraud and personal injury (including, but not limited to, mental or emotional anguish, humiliation, embarrassment, loss of professional status, prestige and self-esteem), as well as all claims for loss of consortium or support or affection, and all damages, costs, expenses, compensation, benefits, and attorneys’ fees. This general release also includes all claims and rights under any federal, state or local law or regulation, including but not limited to, Title VII of Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Family and Medical Leave Act, the Americans with Disabilities Act, the Xxxxx Xxxxxxxxx Fair Pay Act, the Equal Pay Act; the Fair Credit Reporting Act; the Genetic Information Nondiscrimination Act; the Michigan Persons with Disabilities Civil Rights Act, the Michigan Wages and Fringe Benefits Act, the Michigan Whistleblowers Protection Act, and the Michigan Xxxxxxx Xxxxxx Civil Rights Act, and/or any other federal, state or local constitution, statute, ordinance or regulation. By signing below, Executive acknowledges and agrees that this general release also includes any and all claims which in any way involve or arise from Executive’s employment or separation from employment with Employer based on events occurring up to and including the date Executive signs this Agreement.
By signing this Agreement, Executive gives up and discharges any such issues, disputes, allegations and claims described above, except for: (i) claims for breach of this Agreement; (ii) claims for health insurance benefits under COBRA or any vested benefits under a retirement plan governed by ERISA; (iii) statutory claims for unemployment or workers’ compensation benefits that are not waivable as a matter of law; (iv) equity awards which by their terms survive the termination of Executive’s employment; and (v) rights to indemnification and reimbursement and advancement of expenses under any charter, bylaw, other organization document,
agreement, vote of shareholders or directors or otherwise. The parties further agree that no future claims based on facts or circumstances arising after the execution of this Agreement are waived. Notwithstanding any other provision in this Agreement, nothing in this Agreement precludes or limits in any way Executive’s right to file a charge or participate or cooperate in any proceeding conducted by the EEOC or comparable state or local fair employment agency. Executive has the right to have a court determine the validity of the above waiver and release of ADEA claims.
(B) Employer, for itself and its current or former parent corporations, units, divisions, subsidiaries, foundations, benefit plans, related or affiliated entities, and all current or former officers, directors, shareholders, employees, donors, agents, attorneys, plan administrators,
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fiduciaries, successors and assigns of Employer, and any entity or unit described above (collectively referred to as “Employer Parties”) fully, completely and forever releases and discharges Executive and his estate, administrators, personal representatives, heirs and beneficiaries, from any and all claims, appeals, controversies, disputes, issues, allegations, loss of services, attorneys’ fees, liabilities, grievances, damages and causes of action of any kind, nature or description, arising from any act, omission, conduct, fact or circumstance existing as of the date Executive signs this Agreement that are known by the Board of Directors of Employer, respectively, on such date, except for: (i) claims under this Agreement; and (ii) claims under the Non-Competition, Non-Solicitation and Confidential Information Agreement dated as of [•] among Executive and Employer.
8. Knowing and Voluntary Acknowledgment. Employer advises and encourages Executive to consult with an attorney prior to signing this Agreement. Executive acknowledges that
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(e) Executive is not waiving or releasing rights or claims that may arise after Executive signs this Agreement; and (f) Executive understands that the waiver and release in this Agreement is being requested in connection with the termination of Executive’s employment with Employer.
9. Consideration Period. Executive acknowledges that in accordance with the Older Workers Benefit Protection Act of 1990 (“OWBPA”), Executive has been given at least [twenty-one (21) days/forty -five (45) days] to review and consider this Agreement before signing it. Executive acknowledges that if he or she chooses to sign this Agreement prior to the expiration of that [21-day/45-day period,], he or she expressly waives any remaining portion of the [21-day/45-day consideration period.]
10. Binding Nature, Modification, Severability and Governing Law. The waiver of a breach of any term of this Agreement does not operate as a waiver of any other or subsequent breach. This Agreement is binding on Employer, its affiliates and all respective successors and assigns, as well as Executive’s personal representatives and heirs. This Agreement may not be assigned by Executive without the prior written consent of [an Executive Vice President of Employer]. No amendment or modification of this Agreement is binding unless in writing, specifically refers to this Agreement, and is signed by both Executive and [an Executive Vice President of Employer]. Any ambiguity in this Agreement will not be construed presumptively against any party. If any court or competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable, such provisions shall be considered removed from this Agreement and the remaining provisions will continue in full force and effect to the fullest extent allowed by applicable law. This Agreement will be interpreted in accord with the laws of the State of Michigan, regardless of any conflict of law provisions. This Agreement may be executed by facsimile and/or in one or more counterparts, each of which shall be deemed an original, but all of which together will constitute one agreement.
11. Medicare Reporting. Executive affirms that he/she is not and has never been a recipient of Medicare benefits, is not otherwise eligible for Medicare benefits, and Medicare has not notified Executive (nor is Executive aware of) any Medicare liens applicable to Executive. Executive acknowledges that none of the Separation Pay is for medical treatment or injuries to Executive caused or attributed to the Employer. The parties have made every effort to adequately protect Medicare’s interest, if any, in this Agreement, and have not shifted responsibility for medical treatment to Medicare in contravention of federal law. Any present or future action or decision by Center for Medicare Services (CMS) regarding this Agreement, or Executive’s eligibility or entitlement to Medicare or Medicare payments, will not render this release void or ineffective, or affect the finality of this Agreement or release of claims. Executive waives any and all private causes of action for damages pursuant to 42 U.S.C. 1395, and acknowledges that the Employer will report any payments to CMS if specifically required by law to do so.
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An arbitrator’s award must be in writing, with specific findings of fact, and will be enforceable by judgment entered upon the award in any court having jurisdiction. In reaching any decision, the arbitrator will interpret and be bound by this Agreement (and cannot add or disregard any provision of this Agreement) as well as applicable federal, state or local law. Any arbitration will provide each party with all substantive rights and remedies provided under any applicable federal or state law related to such claim, including but not limited to, any legal or equitable remedy available in a court of competent jurisdiction such as money damages and legal fees. In the event of a conflict between this Agreement and any policy, rule or practice of the Employer or the AAA, the Arbitrator is bound by the terms of this Agreement. Nothing in this agreement to arbitrate precludes Employer or executive from seeking temporary or permanent injunctive or declaratory relief from a court of competent jurisdiction relative to any alleged breach of an applicable non-compete or trade secret agreement between the parties. Neither party shall be entitled to: (i) join or consolidate claims in arbitration by or against other Executives, (ii) arbitrate any claim against the other party as a representative or member of a class or collective action, or (iii) arbitrate any claim in a private attorney general capacity.
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EXECUTIVE UNDERSTANDS THAT HE MUST SIGN AND RETURN THIS AGREEMENT BY [DATE] OR HIS RIGHT TO THE SEPARATION PAY SHALL BE FORFEITED.
THE PARTIES HAVE FULLY CONSIDERED THIS AGREEMENT AND GENERAL RELEASE FREELY AND KNOWINGLY ENTER INTO THIS AGREEMENT AND GENERAL RELEASE.
WITNESS EXECUTIVE
Date: Date:
NEW YORK COMMUNITY BANCORP, INC.
By:
Its:
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Exhibit B
NON-COMPETITION, NON-SOLICTATION AND
CONFIDENTIAL INFORMATION AGREEMENT
This Non-Competition, Non-Solicitation and Confidential Information Agreement (“Agreement”) is between New York Community Bancorp, Inc., a Delaware corporation (the “Company”), and Xxx Xxxxx (the “Executive”), and is effective as of the time the Executive executes this Agreement.
In consideration of Employee’s employment with the Company, and the compensation and benefits to be provided to Employee by the Company, Employee hereby acknowledges and agrees as follows:
1. Confidential Information. “Confidential Information” is to be broadly interpreted and means (i) all non-public techniques/strategies and information that Company has or Executive (in the course and scope of employment with the Company) develops, compiles, acquires, or receives that has or may have commercial value or usefulness to the Company, to its clients or to their competitors in their respective businesses; (ii) all non-public information that, if disclosed without authorization, could be detrimental to the interest of Company or its clients, whether or not such information is identified as Confidential Information or otherwise “confidential” by Company or its Clients; (iii) any consumer, customer, or employee information, including all personally identifiable information of any consumer, customer, or employee in any format to which Executive may have access during employment with Company; and (iv) all information belonging to third parties, such as vendors, that the Company is bound by contract or otherwise to keep confidential. Confidential Information includes not only information disclosed by Company (including its employees, agents, and independent contractors) or its clients to Executive, but also information developed or learned by Executive in the course and scope of employment with the Company. By example only and without limitation, “Confidential Information” includes all information on trade secrets, inventions, innovations, processes, discoveries, improvements, research or development test results, specifications, data, data compilations and analyses, know-how, formats, employee information, subscriber information, marketing plans, business plans, strategies, forecasts, unpublished financial information, budgets, projections, and client, prospective client and supplier identities and contact information, characteristics and agreements, whether in print, in electronic files, or residing on non-public Internet sites.
The Company is the sole owner of the Confidential Information or is authorized by a third party to use the Confidential Information for limited purposes. Executive hereby irrevocably assigns to the Company all right, title, and interest Executive may have or may acquire during the course of or connected to employment with the Company, under any applicable law, in and to all Confidential Information.
At all times during Executive’s employment with the Company, and after such employment ends (for any reason, voluntarily or involuntarily), Executive shall hold in trust, keep confidential and shall not make any direct or indirect use or disclosure of any Confidential
Information, to or for Executive’s benefit or any third party’s benefit. In the event that Executive is not sure whether certain information is Confidential Information, Executive shall err on the side of caution and treat such information as Confidential Information. It is Executive’s
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responsibility to understand what is considered to be Confidential Information in his/her area of work and to follow any specific guidelines and procedures set forth by his/her department to protect such Confidential Information. Employee shall not remove any Confidential Information from the Company’s premises or computer/electronic systems unless absolutely required by Executive’s job, in which case, Executive shall undertake diligent steps to insure that it remains confidential and that it is protected from loss, damage, theft and disclosure, and Employee immediately shall return the Confidential Information (and any copies thereof) to the Company’s premises computer/electronic systems.
Notwithstanding the foregoing, in certain limited circumstances described in the Company’s Confidentiality Guideline, Employee may disclose Confidential Information that consists of materials that would otherwise be subject to trade secret protection. Further, Confidential Information shall not be deemed to include information that (w) becomes generally available to the public through no fault of the Executive, (x) is previously known by the Executive prior to his receipt of such information from the Company, (y) becomes available to the Executive on a non-confidential basis from a source which, to the Executive’s knowledge, is not prohibited from disclosing such information by legal, contractual or fiduciary obligation to the Company or (z) is required to be disclosed in order to comply with any applicable law or court order.
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NEW YORK COMMUNITY BANCORP, INC.
By
Name: Xxxx X. Xxxxxx
Title: Executive Vice President and
Chief Human Resources Officer
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EXECUTIVE:
Signature Name (Printed) Dated:
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