EXHIBIT 10.5
FLUSHING SAVINGS BANK, FSB
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made and
entered into as of the 28th day of November, 2000, by and between Flushing
Savings Bank, FSB, a savings bank organized and existing under Federal law and
having its executive offices at 000-00 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxx Xxxx
00000 (the "Bank"), and Xxxxxxx X. Xxxxxxx, residing at [ADDRESS ON FILE]
("Officer").
WITNESSETH:
WHEREAS, the Bank and the Officer are parties to an Employment Agreement
dated as of November 21, 1995 and amended as of June 18, 1996 and November 26,
1996; and
WHEREAS, the Bank considers the availability of the Officer's services to
be important to the successful management and conduct of the Bank's business and
desires to secure for itself the continued availability of his services; and
WHEREAS, for purposes of securing for the Bank the Officer's continued
services, the Board of Directors of the Bank ("Board") has authorized the proper
officers of the Bank to enter into an amended and restated employment agreement
with the Officer on the terms and conditions set forth herein; and
WHEREAS, the Officer is willing to make his services available to the Bank
on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and obligations hereinafter set forth, the Bank and the Officer hereby agree as
follows:
Section 1. Employment.
The Bank hereby agrees to employ the Officer, and the Officer hereby agrees
to accept such employment, during the period and upon the terms and conditions
set forth in this Agreement.
Section 2. Employment Period.
(a) Except as otherwise provided in this Agreement to the contrary, the
terms and conditions of this Agreement shall be and remain in effect during the
period of employment ("Employment Period") established under this section 2. The
Employment Period under this Amended and Restated Employment Agreement shall be
for a term commencing on November 28, 2000 and ending on November 21, 2003, plus
such extensions as are provided pursuant to section 2(b) of this Agreement.
(b) On or as of July 1, 2001, and on or as of each July 1 thereafter, the
Employment Period shall be extended for one additional year if and only if the
Board shall have authorized the extension of the Employment Period prior to July
1 of such year and the Officer shall not have notified the Bank prior to July 1
of such year that the Employment Period shall not be so extended. If the Board
shall not have authorized the extension of the Employment Period prior to July 1
of any such year, or if the Officer shall have given notice of nonextension to
the Bank prior to July 1 of such year, then the Employment Period shall not be
extended pursuant to this section 2(b) at any time thereafter and shall end on
the last day of its term as then in effect. Notwithstanding the foregoing
provisions of this Section 2(b), there shall be no extension of the term of this
Agreement as of July 1, 2003 and July 1, 2004, so as to reduce the remaining
term of the Agreement, and annual extensions shall begin again as of July 1,
2005.
(c) Upon the termination of the Officer's employment with the Bank, the
extensions provided pursuant to section 2(b) shall cease (if such extensions
have not previously ceased).
Section 3. Title and Duties.
On the date on which the Employment Period commences, the Officer shall
hold the position of President and Chief Executive Officer of the Bank and shall
be a member of the Board with all of the powers and duties incident to such
positions under law and under the by-laws of the Bank. During the Employment
Period, the Officer shall: (a) devote his full business time and attention
(other than during weekends, holidays, vacation periods and periods of illness
or approved leaves of absence) to the business and affairs of the Bank and use
his best efforts to advance the Bank's interests, including reasonable periods
of service as an officer and/or board member of trade associations, their
related entities and charitable organizations; and (b) perform such reasonable
additional duties as may be assigned to him by or under the authority of the
Board; provided, however, that the Officer shall be permitted to devote a
reasonable amount of time to service on the Board of Directors of EDO
Corporation, so long as such service shall not interfere with his obligations
under this Agreement. The Officer shall have such authority as is necessary or
appropriate to carry out his duties under this Agreement.
Section 4. Compensation.
In consideration for services rendered by the Officer under this Agreement:
(a) The Bank shall pay to the Officer a salary at an annual rate equal to
the greater of (i) $420,000 or (ii) such higher annual rate as may be prescribed
by or under the authority of the Board (the "Current Salary"). In addition, the
Bank shall credit to the Officer 10% of the greater of the amounts described in
the preceding clauses (i) and (ii) to be deferred in accordance with section
5(b). The Officer will undergo an annual salary and performance review on or
about June 30 of each year commencing in 2001. The Current Salary payable under
this section 4 shall be paid in approximately equal installments in accordance
with the Bank's customary payroll practices.
(b) The Officer shall be eligible to participate in any bonus plan
maintained by the Bank for its officers and employees.
Section 5. Employee Benefits and Other Compensation.
(a) Except as otherwise provided in this Agreement, the Officer shall,
during the Employment Period, be treated as an employee of the Bank and be
entitled to participate in and receive benefits under the Bank's employee
benefit plans and programs, as well as such other compensation plans or programs
(whether or not employee benefit plans or programs), as the Bank may maintain
from time to time, in accordance with the terms and conditions of such employee
benefit plans and programs and compensation plans and programs and with the
Bank's customary practices.
(b) On the last day of each regular payroll period during the Employment
Period, the Bank shall credit to a bookkeeping account maintained by the Bank
(the "Deferred Compensation Account") 10% of the Current Salary payable to the
Officer during such period pursuant to section 4. The deferred compensation
provided under this section 5(b) shall be deemed to be invested in one or more
of the investment funds offered by Retirement System Fund, Inc. or in such other
funds as may be specified by the Bank with the consent of the Officer
("Investment Funds") in multiples of 10%, as directed by the Officer from time
to time no more frequently than once each calendar quarter. The Officer's
Deferred Compensation Account shall be credited at least quarterly with the
earnings (or losses) on such investments. The amount credited to the Officer's
Deferred Compensation Account (including earnings or losses) shall be paid by
the Bank to the Officer (or in the event of his death to his designated
beneficiaries or, in the absence of any designation, his estate) in a cash lump
sum promptly after the Officer's termination of employment with the Bank for any
reason. For the purpose of determining the amount of such payment, the value of
the account balance shall be determined ten (10) days prior to the payment date.
The Officer acknowledges that the deferred compensation provided for in this
section 5(b) shall not be taken into account for
purposes of computing any pension or other retirement benefit to which he may be
entitled under the Bank's benefit plans or programs.
(c) The Bank shall provide the Officer with a suitable automobile for use
in the performance of the Officer's duties hereunder and shall reimburse the
Officer for all expenses incurred in connection therewith.
(d) The Officer shall be entitled, without loss of pay, to vacation time in
accordance with the policies periodically established by the Board for senior
management officials of the Bank, which shall in no event be less than four
weeks in each calendar year. Except as provided in section 7(b), the Officer
shall not be entitled to receive any additional compensation from the Bank on
account of his failure to take a vacation, nor shall he be entitled to
accumulate unused vacation from one calendar year to the next except to the
extent authorized by the Board for senior management officials of the Bank.
(e) On May 27 of each of the years 1996 through 2000, the Bank has credited
to a bookkeeping account maintained by the Bank ("Supplemental Retirement
Account") a supplemental retirement benefit of $30,000. Prior to May 27, 2000,
any interest or earnings obtained from investment of the supplemental retirement
benefit provided under this section 5(e) shall accrue to the Bank. Following May
27, 2000, the supplemental retirement benefit shall be deemed to be invested in
one or more of the Investment Funds in multiples of 10%, as directed by the
Officer from time to time no more frequently than once each calendar quarter,
and the Officer's Supplemental Retirement Account shall be credited at least
quarterly with the earnings (or losses) on such investments. Upon the Officer's
termination of employment with the Bank for any reason, the amount credited to
the Officer's Supplemental Retirement Account (including earnings or losses
credited as described above) shall be paid by the Bank to the Officer (or in the
event of his death to his designated beneficiaries or, in the absence of any
designation, his estate) in a cash lump sum. For the purpose of determining the
amount of such payment, the value of the account balance shall be determined ten
(10) days prior to the payment date.
(f) On May 27 of each of the years 2001 through 2011, the Bank shall credit
to a bookkeeping account maintained by the Bank (the "Additional SERP Account")
an additional supplemental retirement benefit of $50,000. Prior to May 27, 2011,
any interest or earnings (or losses) obtained from investment of the additional
supplemental retirement benefit provided under this section 5(f) shall accrue to
the Bank and shall not be credited to the Officer's Additional SERP Account, but
may be utilized by the Bank to discharge its obligations under this section
5(f). Following May 27, 2011, the additional supplemental retirement benefit
shall be deemed to be invested in one or more of the Investment Funds, in
multiples of 10%, as directed by the Officer from time to time no more
frequently than once each calendar quarter, and the Officer's Additional SERP
Account shall be credited at least quarterly with the earnings (or losses) on
such investments. Upon the Officer's termination of employment with the Bank by
reason of his death, or upon his voluntary resignation without Good Reason, or
upon his termination for "Cause" (as defined in section 8(b) of this Agreement),
the amount then credited to the Officer's Additional SERP Account (disregarding
earnings and losses prior to May 27, 2011) shall be promptly paid by the Bank to
the Officer (or in the case of his death, to his designated beneficiaries or, in
the absence of any designation, to his estate) in a cash lump sum, and
thereafter no additional amounts shall be credited to the Officer's Additional
SERP Account. Upon the Officer's termination of employment with the Bank by
reason of retirement (which shall mean termination of employment at a time when
the Officer is eligible to receive an Early, Normal, or Postponed Retirement
Benefit under the Bank's Retirement Plan), Disability (as defined in section
9(a)), voluntary resignation within one year following an event that constitutes
Good Reason (as defined in section 7(a)(i)), or discharge without "Cause", or in
the event of the Officer's termination of employment for any reason following a
Change of Control, the Bank shall promptly pay to the Officer a cash lump sum
equal to (i) $500,000, without regard to the amount then credited to his
Additional SERP Account, or (ii) the amount then credited to his Additional SERP
Account if such amount is greater than $500,000 and termination of employment
occurs after May 27, 2011. Upon such payment, no further amount shall be payable
under this section 5(f).
(g) The Bank shall fund in a "rabbi trust" on an ongoing and current basis
(i) the deferred compensation provided under section 5(b) hereof, (ii) the
supplemental retirement benefit provided under section 5(e) hereof, (iii) the
additional supplemental retirement benefit provided under section 5(f) hereof,
and (iv) the amount credited to the Officer's account under the Bank's
Supplemental Savings Incentive Plan. The Trustee of such "rabbi trust" shall be
an independent bank or trust company.
(h) If any amounts deferred pursuant to this Agreement are found in a
"determination" (within the meaning of Section 1313(a) of the Internal Revenue
Code of 1986, as amended) to have been includible in gross income by the Officer
prior to payment of such amounts under this Agreement, such amounts shall be
immediately paid to the Officer, notwithstanding any other provision of this
Agreement providing for deferral.
Section 6. Working Facilities and Expenses.
The Officer's principal place of employment shall be at the executive
offices of the Bank in Queens County, New York or at such other location upon
which the Bank and the Officer may mutually agree. The Bank shall provide the
Officer, at his principal place of employment, with a private office,
stenographic services and other support services and facilities consistent with
his position with the Bank and necessary or appropriate in connection with the
performance of his duties under this Agreement. The Bank shall reimburse the
Officer for his ordinary and necessary business expenses, including, without
limitation, travel and entertainment expenses, incurred in connection with the
performance of his duties under this Agreement, upon presentation to the Bank of
an itemized account of such expenses in such form as the Bank may reasonably
require.
Section 7. Termination with Bank Liability.
(a) In the event that the Officer's employment with the Bank shall
terminate during the Employment Period on account of:
(i) the Officer's voluntary resignation from employment with
the Bank within one year following an event that constitutes
"Good Reason," which is defined as:
(A) the failure of the Bank to elect or to reelect the
Officer to serve as its President and Chief Executive
Officer and a member of its Board of Directors, or such
other position as the Officer consents to hold;
(B) the failure of the Bank to cure a material adverse
change made by the Bank in the Officer's functions, duties,
or responsibilities in his position with the Bank within
sixty days following written notice thereof from the
Officer;
(C) the failure of the Bank to maintain the Officer's
principal place of employment at the executive offices of
the Bank in Queens County, New York or at such other
location upon which the Bank and the Officer may mutually
agree;
(D) the failure of the Board to extend the Employment
Period within the times provided in section 2(b); provided,
however, that such failure shall not constitute Good Reason
until the earlier of 30 days after any determination by the
Board that the Employment Period shall not be so extended or
August 1 of such year;
(E) the failure of the Bank to cure a material breach
of this Agreement by the Bank within sixty days following
written notice thereof from the Officer; or
(F) after a Change of Control, the failure of any
successor company to the Bank to assume this Agreement.
(ii) the discharge of the Officer by the Bank for any reason
other than (A) for "Cause" as defined in section 8(b) or (B) the
Officer's death or "Disability" as defined in section 9(a); or
(iii) the Officer's voluntary resignation from employment
with the Bank for any reason within the sixty-day period
commencing six months following a Change of Control as defined in
section 10;
then the Bank shall provide the benefits and pay to the Officer as liquidated
damages the amounts provided for under section 7(b).
(b) Upon the termination of the Officer's employment with the Bank under
circumstances described in section 7(a), the Bank shall pay and provide to the
Officer:
(i) his earned but unpaid Current Salary as of the date of
termination, plus an amount representing any accrued but unpaid
vacation time and floating holidays;
(ii) if the Officer's termination of employment occurs after
a Change of Control, a pro rata portion of his bonus for the year
of termination, determined by multiplying the amount of the bonus
earned by the Officer for the preceding calendar year by the
number of full months of employment during the year of
termination, and dividing by 12. If the Officer's termination of
employment occurs prior to a Change of Control, the Compensation
Committee of the Bank may, in its sole discretion, award the
Officer a bonus for the year of termination, in an amount
determined by such Committee either at the time of termination of
employment or at the time bonuses to active employees are
awarded, which the Bank shall pay to the Officer promptly after
it has been awarded;
(iii) the benefits, if any, to which he is entitled as a
former employee under the Bank's employee benefit plans and
programs and compensation plans and programs;
(iv) continued health and welfare benefits (including group
life, disability, medical and dental benefits), in addition to
that provided pursuant to section 7(b)(iii), to the extent
necessary to provide coverage for the Officer for the Severance
Period (as defined in section 7(c). Such benefits shall be
provided through the purchase of insurance, and shall be
equivalent to the health and welfare benefits (including
cost-sharing percentages) provided to active employees of the
Bank (or any successor thereof) as from time to time in effect
during the Severance Period. Where the amount of such benefits is
based on salary, they shall be provided to the Officer based on
the highest annual rate of Current Salary achieved by the Officer
during the Employment Period. If the Officer had dependent
coverage in effect at the time of his termination of employment,
he shall have the right to elect to continue such dependent
coverage for the Severance Period. The benefits to be provided
under this paragraph (iv) shall cease to the extent that
substantially equivalent benefits are provided to the Officer
(and/or his dependents) by a subsequent employer of the Officer;
(v) if the Officer is age 55 or older at the end of the
Severance Period, he shall be entitled to elect coverage for
himself and his dependents under the Bank's retiree medical and
retiree life insurance programs. Such coverage, if elected, shall
commence upon the expiration of the Severance Period, without
regard to whether the Officer commences his pension benefit at
such time, and shall continue for the life of each of the Officer
and his spouse and for so long as any of his other covered
dependents, remain eligible. The coverage and cost-sharing
percentage of the Officer and his dependents under such programs
shall be those in effect under such programs on the date of the
Officer's termination of employment with the Bank, and shall not
be adversely modified without the Officer's written consent; and
(vi) within thirty days following his termination of
employment with the Bank, a cash lump sum payment in an amount
equal to the Current Salary, bonus, and
deferred compensation that the Officer would have earned pursuant
to sections 4(a), 4(b), and 5(b), respectively, if he had
continued working for the Bank for the Severance Period. For
purposes of this paragraph, (A) the amount of bonus shall be the
highest bonus, if any, paid to the Officer by the Bank under
section 4(b) within the three-year period prior to the date of
termination, and (B) the amount of deferred compensation shall be
determined without any earnings on the additional deferred
compensation that would have been credited under section 5(b)
during the Severance Period. The calculation of the amount
payable pursuant to this clause (vi) is set forth on Schedule A
hereto; and
(vii) payment of the deferred compensation to which he is
entitled pursuant to section 5(b), the supplemental retirement
benefit to which he is entitled pursuant to section 5(e), and the
additional supplemental retirement benefit to which he is
entitled pursuant to Section 5(f) (in each case after crediting
to his Accounts established under such sections any amount which
was required to be credited to such Account pursuant to such
sections as of the date of his termination of employment but was
not so credited).
The lump sum payable pursuant to clause (vi) of this section 7(b) is to be paid
in lieu of all other payments of Current Salary, bonus, and deferred
compensation provided for under this Agreement relating to the period following
any such termination and shall be payable without proof of damages and without
regard to the Officer's efforts, if any, to mitigate damages. The Bank and the
Officer hereby stipulate that the damages which may be incurred by the Officer
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 provided under this section 7(b) are reasonable under the circumstances
as a combination of liquidated damages and severance benefits. The Officer shall
not be entitled to any payment under this Agreement to make up for benefits that
would have been earned under the Bank's Retirement Plan, 401(k) Savings Plan,
and Supplemental Savings Incentive Plan (SSIP), and the Flushing Financial
Corporation ("Holding Company") Stock-Based Profit Sharing Plan had he continued
working for the Bank for the Severance Period.
(c) For purposes of section 7, the Severance Period means:
(i) in the case of termination of employment prior to May
27, 2004, a period of 36 months;
(ii) in the case of termination of employment on or after
May 27, 2004, but prior to a Change of Control, a period of 12
months; and
(iii) in the case of termination of employment after a
Change of Control, a period of 36 months.
Section 8. Termination for Cause or Voluntary Resignation Without Good
Reason.
(a) In the event that the Officer's employment with the Bank shall
terminate during the Employment Period on account of:
(i) the discharge of the Officer by the Bank for Cause; or
(ii) the Officer's voluntary resignation from employment
with the Bank for reasons other than those constituting a Good
Reason;
then the Bank shall have no further obligations under this Agreement, other than
(A) the payment to the Officer of his earned but unpaid Current Salary as of the
date of the termination of his employment; (B) the provision of such other
benefits, if any, to which he is entitled as a former employee under the Bank's
employee benefit plans and programs and compensation plans and programs; and (C)
the payment of the deferred compensation to which he is
entitled pursuant to section 5(b), the supplemental retirement benefit to which
he is entitled pursuant to section 5(e), and the additional supplemental
retirement benefit to which he is entitled pursuant to Section 5(f) (in each
case after crediting to his Accounts established under such sections any amount
which was required to be credited to such Account pursuant to such sections as
of the date of his termination of employment but was not so credited).
(b) For purposes of this Agreement, the term "Cause" means the Officer's
personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties, willful
violation of any law, rule, or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order, or material breach of any
provision of this Agreement.
Section 9. Disability or Death.
(a) The Officer's employment with the Bank may be terminated for
"Disability" if the Officer shall become disabled or incapacitated during the
Employment Period to the extent that he has been unable to perform the essential
functions of his employment for 270 consecutive days. Upon a termination of
employment for "Disability," the Bank shall pay to the Officer in cash the
following percentages of his Current Salary and deferred compensation under
sections 4 and 5(b) of this Agreement until the end of the Employment Period:
100% for the first six months, 75% for the next six months and 60% thereafter
for the remaining term, if any, of the Employment Period (less in each case any
benefits which may be payable to the Officer under the provisions of disability
insurance coverage in effect for Bank employees). In addition, the Officer shall
receive a cash lump sum payment equal to the amount of the Officer's
Supplemental Retirement Account established pursuant to section 5(e), and
payment of his Deferred Compensation Account as provided in section 5(b) and the
additional supplemental retirement benefit to which he is entitled pursuant to
section 5(f) (in each case after crediting to the Accounts established under
such sections any amounts which were required to be credited to such Accounts
pursuant to sections 5(b), 5(e), and 5(f) as of the date of his termination of
employment but were not so credited).
(b) In the event that the Officer's employment with the Bank shall
terminate during the Employment Period on account of death, the Bank shall
promptly pay the Officer's designated beneficiaries or, failing any designation,
his estate a cash lump sum payment equal to his earned but unpaid Current Salary
plus the amount of the Officer's Deferred Compensation Account, Supplemental
Retirement Account, and Additional SERP Account as provided in sections 5(b),
5(e), and 5(f) (after crediting to such Accounts any amounts which were required
to be credited to such Accounts pursuant to sections 5(b), 5(e), and 5(f) as of
the date of his death but were not so credited).
(c) In the event of the Officer's termination of employment on account of
death or Disability prior to a Change of Control, the Compensation Committee of
the Bank may, in its sole discretion, award the Officer a bonus for the year of
termination, in an amount determined by such Committee either at the time of
termination of employment or at the time bonuses to active employees are
awarded, in which case the Bank shall pay such bonus to the Officer or, in the
event of death, his designated beneficiaries or estate, as the case may be,
promptly after it is awarded. In the event of the Officer's termination of
employment on account of death or Disability after a Change of Control, the Bank
shall promptly pay the Officer or, in the event of death, his designated
beneficiaries or estate, as the case may be, a pro rata portion of his bonus for
the year of termination, determined by multiplying the amount of the bonus
earned by the Officer for the preceding calendar year by the number of full
months of employment during the year of termination, and dividing by 12.
Section 10. Change of Control.
For purposes of this Agreement, the term "Change of Control" means:
(a) the acquisition of all or substantially all of the assets of the Bank
or Flushing Financial Corporation ("Holding Company") by any person or entity,
or by any persons or entities acting in concert;
(b) the occurrence of any event if, immediately following such event, a
majority of the members of the Board of Directors of the Bank or the Holding
Company or of any successor corporation shall consist of persons
other than Current Members (for these purposes, a "Current Member" shall mean
any member of the Board of Directors of the Bank or the Holding Company as of
July 18, 2000 and any successor of a Current Member whose nomination or election
has been approved by a majority of the Current Members then on the Board of
Directors);
(c) the acquisition of beneficial ownership, directly or indirectly (as
provided in Rule 13d-3 of the Securities Exchange Act of 1934 (the "Act"), or
any successor rule), of 25% or more of the total combined voting power of all
classes of stock of the Bank or the Holding Company by any person or group
deemed a person under Section 13(d)(3) of the Act; or
(d) approval by the stockholders of the Bank or the Holding Company of an
agreement providing for the merger or consolidation of the Bank or the Holding
Company with another corporation where the stockholders of the Bank or the
Holding Company, immediately prior to the merger or consolidation, would not
beneficially own, directly or indirectly, immediately after the merger or
consolidation, shares entitling such stockholders to 50% or more of the total
combined voting power of all classes of stock of the surviving corporation.
Section 11. No Effect on Employee Benefit Plans or Compensation Programs.
Except as expressly provided in this Agreement, the termination of the
Officer's employment during the term of this Agreement or thereafter, whether by
the Bank or by the Officer, shall have no effect on the rights and obligations
of the parties hereto under the Bank's employee benefit plans or programs or
compensation plans or programs (whether or not employee benefit plans or
programs) that the Bank may maintain from time to time.
Section 12. Successors and Assigns.
This Agreement will inure to the benefit of and be binding upon the
Officer, his legal representatives and estate or intestate distributees, and the
Bank and its successors and assigns, including any successor by merger or
consolidation or a statutory receiver or any other person or firm or corporation
to which all or substantially all of the assets and business of the Bank may be
sold or otherwise transferred.
Section 13. Notices.
Any communication to a party required or permitted under this Agreement,
including any notice, direction, designation, consent, instruction, objection or
waiver, shall be in writing and shall be deemed to have been given at such time
as it is delivered personally, or five days after mailing if mailed, postage
prepaid, by registered or certified mail, return receipt requested, addressed to
such party at the address listed below or at such other address as one such
party may by written notice specify to the other party:
If to the Officer:
Xxxxxxx X. Xxxxxxx
[ADDRESS ON FILE]
If to the Bank:
Flushing Savings Bank, FSB
000-00 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Secretary of the Bank
Section 14. 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 15. 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 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 16. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, and all of which shall constitute one and the same
Agreement.
Section 17. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York, without reference to
conflicts of law principles.
Section 18. Headings.
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 19. 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, including the Employment Agreement dated as of November 21, 1995, by and
between the Bank and the Officer. No modifications of this Agreement shall be
valid unless made in writing and signed by the parties hereto.
Section 20. Funding.
The Bank has agreed to fund certain of its obligations to the Officer under
this Agreement in a "rabbi trust"; provided, however, that all assets used by
the Bank to fund its obligations shall be part of the general assets of the Bank
and shall be subject to all claims of the Bank's creditors.
Section 21. Regulatory Action.
(a) Notwithstanding any other provision of this Agreement to the contrary,
this Section 21 shall apply at all times during the Employment Period.
(b) If the Officer is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of the Bank by a notice served under
12 U.S.C. 1818(e)(3) and (g)(1), the Bank's obligations to the Officer under
this Agreement shall be suspended as of the date of such service unless such
service is stayed by appropriate proceedings. If the charges in such notice are
dismissed, the Bank shall (i) pay the Officer all of the compensation withheld
while the Bank's obligations under this Agreement were so suspended, and (ii)
reinstate in whole any of its obligations to the Officer which were suspended.
(c) If the Officer is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under 12
U.S.C. 1818(e)(4) or (g)(1), all obligations of the Bank to the Officer under
this Agreement shall terminate as of the effective date of the order, other than
vested rights of the parties accrued as of such effective date, which shall not
be affected.
(d) If the Bank is in default (as defined in section 3(x)(1) of the Federal
Deposit Insurance Act), all obligations of the Bank under this Agreement shall
terminate as of the date of such default, but this Section 21(d) shall not
affect any vested rights of the Officer accrued as of such date of default.
(e) All obligations of the Bank under this Agreement shall be terminated,
except to the extent it is determined that continuation of the Agreement is
necessary to the continued operation of the Bank, (i) by the Regional Director
of the Office of Thrift Supervision or his or her designee ("Director") at the
time the Federal Deposit Insurance Corporation or Resolution Trust 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; provided,
however, that this Section 21(e) shall not affect any vested rights of the
Officer accrued as of such date of termination.
(f) Any payments made to the Officer pursuant to this Agreement or
otherwise are subject to and conditioned upon their compliance with 12 U.S.C.
ss. 1828(k) and any regulations promulgated thereunder.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the day
and year first above written.
FLUSHING SAVINGS BANK, FSB
By: /S/ XXXXXX X. XXXXX, XX.
-------------------------------
Name: Xxxxxx X. Xxxxx, Xx
Title: Chairman
/S/ XXXXXXX X. XXXXXXX
----------------------------------
Xxxxxxx X. Xxxxxxx
Schedule A
Calculation of Amount Payable pursuant to Section 7(b), Clause (vi)
Assuming Termination of Employment December 1, 2000
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(1) Current Salary is greater of
(a) $420,000
(b) annual salary in effect
$ 420,000
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(2) Bonus is greatest of bonus paid in last 3 years
before termination
(a) $140,000 (1999 bonus)
(b) 90,000 (1998 bonus)
(c) 78,000 (1997 bonus)
$ 140,000
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(3) Deferred Compensation
10% of amount in Step (1) $ 42,000
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(4) Severance Period
36 months = 3 years
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(5) Amount Payable
3 times (1)+(2)+(3) $1,806,000
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