Exhibit 10.14
THE XXXXXX SAVINGS BANK
EMPLOYMENT AGREEMENT
This AGREEMENT ("Agreement") is made effective as of February 16, 1999, by
and among The Xxxxxx Savings Bank (the "Institution"), a state chartered savings
institution, with its principal administrative office at 0000 Xxx Xxxxxxxx
Xxxxxxxxx, Xxxxxx, Xxx Xxxx, 00000, Xxxxxx Bancorp, Inc., a corporation
organized under the laws of the State of Delaware, the holding company for the
Institution (the "Holding Company"), and A. Xxxxxx Xxxx ("Executive").
WHEREAS, the Institution wishes to assure itself of the services of
Executive for the period provided in this Agreement; and
WHEREAS, Executive is willing to serve in the employ of the Institution on
a full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, Executive agrees to serve as
Executive Vice President and Special Transition Officer of the Institution.
Executive shall render administrative and management services to the Institution
such as are customarily performed by persons situated in a similar executive
capacity.
2. TERMS AND DUTIES.
(a) The period of Executive's employment under this Agreement shall
commence as of the date first above written (the effective date of this
Agreement) and shall continue for a period of twelve (12) full calendar months
thereafter. Effective as of the first anniversary of the date of this Agreement
and each anniversary date thereafter, the board of directors of the Institution
(the "Board") may extend the term of this Agreement for an additional twelve
(12) month period, unless Executive elects not to extend the term of the
Agreement by giving written notice in accordance with Section 8 of this
Agreement. The Board shall give notice to Executive as to whether the Agreement
is to be extended no later than sixty (60) days prior to any anniversary date of
this Agreement. If the Board does not provide Executive with notice of an
intent to renew this Agreement at least sixty (60) days prior to an applicable
anniversary date of the Agreement, the Agreement shall automatically expire as
of that anniversary date, unless the Board and Executive subsequently agree
otherwise.
(b) During the period of Executive's employment under this Agreement,
except for periods of absence occasioned by illness, reasonable vacation
periods, and reasonable leaves of absence, Executive shall devote substantial
business time, attention, skill, and efforts to the faithful performance of his
duties hereunder, including activities and services related to the organization,
operation and management of the Institution and participation in community and
civic organizations; provided, however, that, with the approval of the Board, as
-------- -------
evidenced by a resolution of the Board, from time to time, Executive may serve,
or continue to serve, on the boards of directors of, and hold any other offices
or positions in, companies or organizations, which, in the Board's judgment,
will not present any conflict of interest with the Institution or its
affiliates, including the Holding Company, or materially affect the performance
of Executive's duties pursuant to this Agreement.
(c) Notwithstanding anything herein to the contrary, the Institution or
Executive may terminate Executive's employment with the Institution at any time
during the term of this Agreement, subject to the terms and conditions of this
Agreement.
3. COMPENSATION AND REIMBURSEMENT.
(a) The Institution shall pay Executive as compensation for the performance
of his duties under this Agreement an annual salary of not less than $200,000
("Base Salary"). Base Salary shall include any amounts of compensation deferred
by Executive under any employee benefit plan or arrangement maintained by the
Institution or the Holding Company. Such Base Salary shall be payable on a bi-
weekly basis in accordance with the payroll practices of the Institution. The
Board or a committee designated by the Board may increase Executive's Base
Salary at any time. Any increase in Base Salary shall become the new "Base
Salary" for purposes of this Agreement. In addition to the Base Salary provided
in this Section 3(a), Executive shall be eligible to participate in, at no
premium cost to Executive, all such other benefits as are uniformly made
available to full-time employees of the Institution.
(b) In addition to the Base Salary provided for by paragraph (a) of this
Section 3, the Institution shall pay or reimburse Executive for all reasonable
travel expenses (in accordance with the Institution's travel policy, as amended
from time to time) and other reasonable expenses incurred by Executive in
performing his obligations under this Agreement.
(c) Executive shall be entitled to participate in or receive benefits under
any employee benefit plans, including, but not limited to, retirement plans,
supplemental retirement plans, pension plans, profit-sharing plans, stock or
option plans, health-and-accident plans, medical coverage or any other employee
benefit plan or arrangement made available by the Holding Company, the
Institution and their respective subsidiaries and affiliates at present or in
the future to its senior executives and key management employees, subject to and
on a basis consistent with the terms, conditions and overall administration of
such plans and arrangements and, with respect to employee benefit plans not
generally available to all employees of the Holding Company or the Institution,
upon designation by the Board. Executive shall be entitled to incentive
compensation and bonuses as provided in any plan or arrangement of the Holding
Company, the Institution and their respective subsidiaries in which Executive is
eligible to participate. Nothing paid to Executive under any such plan or
-2-
arrangement will be deemed to be in lieu of other compensation to which
Executive is entitled under this Agreement.
(d) In addition to any pension benefits to which Executive shall be
entitled (i) under any tax-qualified defined benefit plan of the Holding
Company, the Institution or any of their respective subsidiaries or affiliates,
or any predecessor of any of them ("Retirement Plan") and (ii) under any
supplemental executive retirement or other defined benefit plan or other excess
benefit plan within the meaning of section 3(36) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") and under any plan to provide
deferred income for a select group of management or highly compensated employees
of the Holding Company, the Institution or any of their respective subsidiaries
of affiliates, or any predecessor of any of them (collectively, "SERP"), the
Holding Company and the Institution shall provide an additional supplemental
pension benefit under this Agreement equal to the difference between (A) the
pension benefits that Executive would have been entitled to under the Retirement
Plan and SERP if his Base Salary under this Agreement were $285,000 (instead of
$200,000) plus any increases in such Base Salary subsequent to the date of this
Agreement (any such increases being effective as of the date such increases take
effect) and (B) the pension benefits that Executive is actually entitled to
under the Retirement Plan and SERP. The intent of this Section 3(d) is to
permit Executive to continue to accrue additional pension benefits under the
Retirement Plan and SERP on and following the date of this Agreement, determined
as if his compensation under such Retirement Plan and SERP were based upon the
prior sentence. For purposes of interpretation, attached hereto as Exhibit A
are computations prepared by the Retirement System Group Inc. which set forth
Executive's accrued monthly pension benefits as of the dates indicated under the
Retirement Plan and SERP of T R Financial Corp. and Roosevelt Savings Bank. The
supplemental pension benefits provided for in this Section 3(d) shall be paid in
the same form and at the same time and subject to the same terms and conditions,
and to the same beneficiaries, as the pension benefits provided to Executive
under the Retirement Plan and/or the SERP, as the case may be. Notwithstanding
the foregoing, Executive and the Institution may mutually agree that such
supplemental pension benefit be paid in a different form or commencing at a
different time.
(e) Executive's principal place of employment shall be at the Institution's
executive offices at the address first above written, or at such other location
in New York City or in Nassau or Suffolk County at which the Institution shall
maintain its principal executive offices, or at such other location as the Board
and Executive may mutually agree upon. The Institution shall provide Executive,
at his principal place of employment, with a private office, stenographic
services and other support services and facilities suitable to his position with
the Institution and necessary or appropriate in connection with the performance
of his assigned duties under this Agreement. The Institution shall provide
Executive with an automobile suitable to the position of Executive Vice
President and Special Transition Officer of the Institution, in accordance with
the prior practices of T R Financial Corp. and Roosevelt Savings Bank, and such
automobile may be used by Executive in carrying out his duties under the
Agreement, including commuting between his residence and his principal place of
employment, and other personal use. The Institution shall reimburse Executive
for his ordinary and necessary business expenses, including, without limitation,
fees for memberships in such clubs and organizations as Executive and the Board
shall mutually agree are necessary and appropriate for business purposes, and
travel and entertainment expenses, incurred
-3-
in connection with the performance of his duties under this Agreement, upon
presentation to the Institution of an itemized account of such expenses in such
form as the Institution may reasonably require.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during Executive's term of employment under this Agreement, the provisions of
this Section 4 shall apply. As used in this Agreement, an "Event of Termination"
shall mean and include any one or more of the following: (i) the termination by
the Institution of Executive's employment hereunder for any reason other than a
Termination for Cause, as provided for in Section 7 hereof ; or (ii) Executive's
resignation upon: (A) a failure to appoint or reappoint Executive as Executive
Vice President and Special Transition Officer or failure to nominate or re-
nominate Executive as a director of the board of directors of the Institution or
Holding Company (unless Executive so consents) at any time during the term of
this Agreement, (B) a material change in Executive's function, duties, or
responsibilities with the Holding Company, the Institution and their respective
subsidiaries and affiliates, which change would cause Executive's position to
become one of lesser responsibility, importance, or scope from the position and
attributes thereof described in Section 1 above, unless consented to by
Executive; (C) a relocation of Executive's principal place of employment by more
than 25 miles from its location at the effective date of this Agreement (unless
Executive so consents), (D) a reduction in the benefits and perquisites from
those made available to Executive as of the effective date of this Agreement,
unless such reduction adversely also affects other full-time employees of the
Institution, (E) a liquidation or dissolution of the Institution or Holding
Company, or (F) a breach of this Agreement by the Institution. Upon the
occurrence of any event described in clauses (A), (B), (C), (D), (E) or (F),
above, Executive shall have the right to elect to terminate his employment under
this Agreement by resignation upon not less than fifteen (15) days prior written
notice given within six full months after the event giving rise to said right to
elect.
(b) Upon the occurrence of an Event of Termination, on the Date of
Termination, as defined in Section 8 of this Agreement, the Institution shall be
obligated to pay Executive, or, in the event of his subsequent death,
Executive's beneficiary or beneficiaries, or his estate, as the case may be, an
amount equal to the sum of: (i) the amount of the remaining payments Executive
would have earned under this Agreement if he had continued his employment with
the Institution throughout the remaining term of this Agreement at his Base
Salary at the Date of Termination and (ii) the annual contributions or payments
the Institution would have made on Executive's behalf to any employee benefit
plans of the Institution or for any perquisite which the Institution would have
provided to Executive during the remaining term of this Agreement based on
contributions or payments made (on an annualized basis) at the Date of
Termination. In the event the Institution is not in compliance with its minimum
capital requirements or if such payments pursuant to this subsection (b) would
cause the Institution's capital to be reduced below its minimum regulatory
capital requirements, such payments shall be deferred until such time as the
Institution or successor thereto is in capital compliance. At the election of
Executive, which election is to be made prior to a Date of Termination, such
amount shall be payable (a) in a lump sum as of Executive's Date of Termination
or (b) on a bi-weekly basis in approximately equal installments during the
remaining
-4-
term of the Agreement. Such payments shall not be reduced in the event Executive
obtains other employment following Executive's termination of employment with
the Institution.
(c) Subject to Section 12 hereof, upon the occurrence of Executive's
termination from employment with the Institution in connection with an Event of
Termination, the Institution will cause to be continued for Executive life,
medical or dental coverage substantially identical to the coverage maintained by
the Institution or the Holding Company for Executive prior to his termination,
at no premium cost to Executive, except to the extent such coverage may be
changed in its application to other full-time employees of the Institution or
the Holding Company. Such coverage shall cease upon the expiration of the then
remaining term of this Agreement.
5. CHANGE IN CONTROL.
(a) For purposes of this Agreement, a "Change in Control" of the
Institution shall be deemed to have occurred at such time as (A) any "person"
(as the term is used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended ("Exchange Act")) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of voting
securities of the Institution or the Holding Company representing 25% or more of
the Institution's or the Holding Company's outstanding voting securities or
right to acquire such securities except for any voting securities of the
Institution purchased by the Holding Company and any voting securities purchased
by any employee benefit plan of the Holding Company or its Subsidiaries, or (B)
individuals who constitute the Board on the date hereof (the "Incumbent Board")
cease for any reason to constitute at least a majority thereof, provided that
any person becoming a director subsequent to the date hereof whose election was
approved by a vote of at least three-quarters of the directors comprising the
Incumbent Board, or whose nomination for election by the Holding Company's
stockholders was approved by a Nominating Committee solely composed of members
which are Incumbent Board members, shall be, for purposes of this clause (b),
considered as though he were a member of the Incumbent Board, or (C) a plan of
reorganization, merger, consolidation, sale of all or substantially all the
assets of the Institution or similar transaction (a "Transaction") occurs or is
effectuated, other than a Transaction following which: (i) more than 50% 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) more than 50% of the outstanding
equity ownership interests in the Institution, and (ii) more than 50% 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) more than 50% of the securities entitled to vote generally in the
election of directors of the Institution.
(b) If a Change in Control has occurred pursuant to Section 5(a) or the
Board has determined that a Change in Control has occurred, Executive shall be
entitled to the benefits provided in paragraphs (c) and (d), of this Section 5
upon his subsequent termination of employment
-5-
at any time during the term of this Agreement due to (i) Executive's dismissal,
or (ii) Executive's voluntary resignation following any demotion, loss of title,
office or significant authority or responsibility, reduction in the annual
compensation or material reduction in benefits or relocation of his principal
place of employment by more than 25 miles from its location immediately prior to
the change in control, unless such termination is because of his death or
termination for Cause.
(c) Upon Executive's entitlement to benefits pursuant to Section 5(b), the
Institution shall pay Executive, or in the event of his subsequent death, his
beneficiary or beneficiaries, or his estate, as the case may be, as severance
pay or liquidated damages, or both, a sum equal to the greater of: (i) the
payments due for the remaining term of the Agreement; or (ii) three (3) times
Executive's annual compensation for the most recently completed year. Such
annual compensation shall include Base Salary, commissions, bonuses,
contributions or accruals on behalf of Executive to any pension and profit
sharing plan, any benefits to be paid or received under any stock-based benefit
plan, severance payments (other than severance payments received in connection
with the acquisition of T R Financial Corp. and Roosevelt Savings Bank),
directors or committee fees and fringe benefits paid or to be paid to Executive
during such years. At the election of Executive, which election is to be made
prior to a Change in Control, such payment shall be made: (a) in a lump sum, (b)
on a bi-weekly basis in approximately equal installments over a period of
thirty-six (36) months following Executive's termination, or (c) on an annual
basis in approximately equal installments over a period of thirty-six (36)
months following Executive's termination. Such payments shall not be reduced in
the event Executive obtains other employment following termination of
employment.
(d) Upon Executive's entitlement to benefits pursuant to Section 5(b), the
Institution will cause to be continued life, medical, dental and long-term or
other disability coverage substantially equivalent to the coverage maintained by
the Institution for Executive at no premium cost to Executive prior to his
severance. Such coverage and payments shall cease upon the expiration of
thirty-six (36) months following the Change in Control.
6. CHANGE IN CONTROL-RELATED PROVISIONS.
In each calendar year that Executive is entitled to receive payments or
benefits under the provisions of this Employment Agreement, the Institution
shall determine if an excess parachute payment (as defined in Section 4999 of
the Internal Revenue Code of 1986, as amended, and any successor provision
thereto, (the "Code")) exists. Such determination shall be made after taking any
reductions permitted pursuant to Section 280G of the Code and the regulations
thereunder. Any amount determined to be an excess parachute payment after taking
into account such reductions shall be hereafter referred to as the "Initial
Excess Parachute Payment." As soon as practicable after a Change in Control, the
Initial Excess Parachute Payment shall be determined. Upon the Date of
Termination following a Change in Control, the Institution shall pay Executive,
subject to applicable withholding requirements under applicable state or federal
law, an amount equal to:
(1) twenty (20) percent of the Initial Excess Parachute Payment (or such
other amount equal to the tax imposed under Section 4999 of the Code);
and
-6-
(2) such additional amount (tax allowance) as may be necessary to
compensation Executive for the payment by Executive of state and
federal income and excise taxes on the payment provided under clause
(1) and on any payments under this clause (2). In computing such tax
allowance, the payment to be made under clause (1) shall be multiplied
by the "gross up percentage" ("GUP"). The GUP shall be determined as
follows:
GUP = Tax Rate
-------------
1 - Tax Rate
The "Tax Rate" for purposes of computing the GUP shall be the sum of
the highest marginal federal and state income and employment-related
tax rates, including any applicable excise tax rates, applicable to
Executive in the year in which the payment under Clause (1) is made.
(3) Notwithstanding the foregoing, if it shall subsequently be determined
in a final judicial determination or a final administrative settlement to which
Executive is a party that the excess parachute payment as defined in Section
4999 of the Code, reduced as described above, is more than the Initial Excess
Parachute Payment (such different amount being hereafter referred to as the
"Determinative Excess Parachute Payment") then the Institution's independent
accountants shall determine the amount (the "Adjustment Amount") the Institution
must pay to Executive in order to put Executive in the same position as
Executive would have been if the Initial Excess Parachute Payment had been equal
to the Determinative Excess Parachute Payment. In determining the Adjustment
Amount, independent accountants of the Institution shall take into account any
and all taxes (including any penalties and interest) paid by or for Executive or
refunded to Executive or for Executive's benefit. As soon as practicable after
the Adjustment Amount has been so determined, the Institution shall pay the
Adjustment Amount to Executive. In no event, however, shall Executive make any
payment under this paragraph to the Institution.
7. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination because of: 1)
Executive's personal dishonesty, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties, willful
violation of any law, rule, regulation (other than traffic violations or similar
offenses), final cease and desist order or material breach of any provision of
this Agreement which results in a material loss to the Institution or the
Holding Company, or 2) Executive's conviction of a crime or act involving moral
turpitude or a final judgement rendered against Executive based upon actions of
Executive which involve moral turpitude. For the purposes of this Section 7, no
act, or the failure to act, on Executive's part shall be "willful" unless done,
or omitted to be done, not in good faith and without reasonable belief that the
action or omission was in the best interests of the Institution or its
affiliates. Notwithstanding the foregoing, Executive shall not be deemed to have
been Terminated for Cause unless and until there shall have been delivered to
him a Notice of Termination which shall include a copy of a resolution duly
adopted by the
-7-
affirmative vote of not less than a majority of the members of the Board at a
meeting of the Board called and held for that purpose (after reasonable notice
to Executive and an opportunity for him, together with counsel, to be heard
before the Board), finding that in the good faith opinion of the Board,
Executive was guilty of conduct justifying Termination for Cause and specifying
the particulars thereof in detail. Executive shall not have the right to receive
compensation or other benefits for any period after the Date of Termination for
Cause. During the period beginning on the date of the Notice of Termination for
Cause pursuant to Section 8 hereof through the Date of Termination for Cause,
any unvested stock options and related rights granted to Executive under any
stock option plan shall not be exercisable nor shall any unvested awards granted
to Executive under any stock benefit plan of the Institution, the Holding
Company or any subsidiary or affiliate thereof, vest. At the Date of Termination
for Cause, any such unvested stock options and related rights and any unvested
awards shall become null and void and shall not be exercisable by or delivered
to Executive at any time subsequent to such Termination for Cause.
8. NOTICE.
(a) Any purported termination by the Institution or by Executive during the
term of this Agreement shall be communicated by Notice of Termination to the
other party hereto. For purposes of this Agreement, a "Notice of Termination"
shall mean a written notice which shall indicate the specific termination
provision in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated.
(b) "Date of Termination" shall mean the date specified in the Notice of
Termination (which, in the case of a Termination for Cause, shall not be less
than fifteen (15) days from the date such Notice of Termination is given) ;
provided, however, that if a dispute regarding Executive's termination exists,
the "Date of Termination shall be determined in accordance with Section 8(c) of
this Agreement.
(c) If within thirty (30) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, except upon the occurrence of a
Change in Control and voluntary termination by Executive in which case the Date
of Termination shall be the date specified in the Notice, the Date of
Termination shall be the date on which the dispute is finally determined, either
by mutual written agreement of the parties, by a binding arbitration award, or
by a final judgment, order or decree of a court of competent jurisdiction (the
time for appeal therefrom having expired and no appeal having been perfected)
and; provided, further, that the Date of Termination shall be extended by a
notice of dispute only if such notice is given in good faith and the party
giving such notice pursues the resolution of such dispute with reasonable
diligence. Notwithstanding the pendency of any such dispute, the Company will
continue to pay Executive his full compensation in effect when the notice giving
rise to the dispute was given (including, but not limited to, Base Salary) and
continue him as a participant in all compensation, benefit and insurance plans
in which he was participating when the notice of dispute was given, until the
dispute is finally resolved in accordance with this
-8-
Agreement. Amounts paid under this Section are in addition to all other amounts
due under this Agreement and shall not be offset against or reduce any other
amounts due under this Agreement.
9. POST-TERMINATION OBLIGATIONS.
All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with this Section 9 for one (1) full year
after the earlier of the expiration of this Agreement or termination of
Executive's employment with the Institution. Executive shall, upon reasonable
notice, furnish such information and assistance to the Institution as may
reasonably be required by the Institution in connection with any litigation in
which it or any of its subsidiaries or affiliates is, or may become, a party.
Notwithstanding any other provision of this Agreement to the contrary, in the
event of the termination of Executive's employment with the Institution or the
termination of this Agreement, Section 12 of this Agreement shall continue in
full force and effect.
10. NON-COMPETITION AND NON-DISCLOSURE.
(a) Upon any termination of Executive's employment hereunder pursuant to
this Agreement, Executive agrees not to compete with the Institution for a
period of six (6) months following such termination in any city, town or county
in which the Institution has an office or has filed an application for
regulatory approval to establish an office, determined as of the effective date
of such termination, except as agreed to pursuant to a resolution duly adopted
by the Board. Executive agrees that during such period and within said cities,
towns and counties, Executive shall not work for or advise, consult or otherwise
serve with, directly or indirectly, any entity whose business materially
competes with the depository, lending or other business activities of the
Institution or its affiliates, including the Holding Company. The parties
hereto, recognizing that irreparable injury will result to the Institution, its
business and property in the event of Executive's breach of this Subsection
8(a), agree that in the event of any such breach by Executive, the Institution,
will be entitled, in addition to any other remedies and damages available, to an
injunction to restrain the violation hereof by Executive, Executive's partners,
agents, servants, employees and all persons acting for or under the direction of
Executive. Nothing herein will be construed as prohibiting the Institution from
pursuing any other remedies available to the Institution for such breach or
threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Institution and its
affiliates, as it may exist from time to time, is a valuable, special and unique
asset of the business of the Institution. Executive will not, during or after
the term of his employment, disclose any knowledge of the past, present, planned
or considered business activities of the Institution or affiliates thereof to
any person, firm, corporation, or other entity for any reason or purpose
whatsoever nor will Executive recruit any employee of the Institution for any
such person, firm, corporation or other entity during the same period.
Notwithstanding the foregoing, except as provided for in Section 8(a) of this
Agreement, Executive may disclose any knowledge of banking, financial and/or
economic principles, concepts or ideas which, in the Board's reasonable opinion,
are not solely and exclusively derived from the business
-9-
plans and activities of the Institution. Further, Executive may disclose
information regarding the business activities of the Institution to the
Superintendent of Banks of the State of New York, the New York Banking
Department, the Office of Thrift Supervision , the Federal Deposit Insurance
Corporation , or other appropriate bank regulator pursuant to a formal
regulatory request, provided Executive promptly notifies the Institution of such
request. In the event of a breach or threatened breach by Executive of the
provisions of this Section, the Institution will be entitled to an injunction
restraining Executive from disclosing, in whole or in part, the knowledge of the
past, present, planned or considered business activities of the Institution or
affiliates thereof, or from rendering any services to any person, firm,
corporation, other entity to whom such knowledge, in whole or in part, has been
disclosed or is threatened to be disclosed. Nothing herein will be construed as
prohibiting the Institution from pursuing any other remedies available to the
Institution for such breach or threatened breach, including the recovery of
damages from Executive.
11. SOURCE OF PAYMENTS.
(a) All payments provided in this Agreement shall be timely paid in cash
or check from the general funds of the Institution. The Holding Company,
however, unconditionally guarantees payment and provision of all amounts and
benefits due hereunder to Executive and, if such amounts and benefits due from
the Institution are not timely paid or provided by the Institution, such amounts
and benefits shall be paid or provided by the Holding Company.
(b) Notwithstanding any provision herein to the contrary, to the extent
that compensation payments and benefits, as provided by this Agreement, are to
or received by Executive under the Employment Agreement dated February 16, 1999,
between Executive and the Holding Company, such compensation payments and
benefits paid by the Holding Company will be subtracted from any amount due
simultaneously to Executive under similar provisions of this Agreement.
12. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior employment agreement between the Institution or
any entity acquired by the Institution or the Holding Company and Executive ,
except that this Agreement shall not affect or operate to reduce any benefit,
compensation, tax indemnification or other provision inuring to benefit of
Executive, or Executive's family or beneficiaries, under the Employment
Agreements dated as of January 23, 1997 between Executive and T R Financial
Corp. and Roosevelt Savings Bank, respectively ("Prior Agreements"). Such Prior
Agreements shall continue in full force and effect except to the extent of the
payments made to Executive as of the closing of the merger of T R Financial
Corp. with Xxxxxx Bancorp, Inc. which transaction closed on the date of this
Agreement. No provision of this Agreement shall be interpreted to mean that
Executive is subject to receiving fewer benefits than those available to him
without reference to this Agreement.
-10-
13. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Institution and their respective successors and assigns.
14. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
15. REQUIRED PROVISIONS.
(a) Any payments made to Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C.
(S)1828(k) and any rules and regulations promulgated thereunder, including 12
C.F.R. Part 359.
16. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
17. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
-11-
18. GOVERNING LAW.
The validity, interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of New York.
19. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by Executive within fifty
(50) miles from the location of the Institution, in accordance with the rules of
the American Arbitration Association then in effect. Judgment may be entered on
the arbitrator's award in any court having jurisdiction; provided, however, that
Executive shall be entitled to seek specific performance of his right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
20. PAYMENT OF COSTS AND LEGAL FEES.
(a) In the event any dispute or controversy arising under or in connection
with Executive's termination is resolved in favor of Executive, whether by
judgment, arbitration or settlement, Executive shall be entitled to the payment
of: (1) all legal fees incurred by Executive in resolving such dispute or
controversy, and (2) any back-pay, including salary, bonuses and any other cash
compensation, fringe benefits and any compensation and benefits due Executive
under this Agreement.
(b) In the event any dispute or controversy arising under or in connection
with Executive's termination is resolved in favor of the Institution, whether by
judgement, arbitration or settlement, the Institution shall be entitled to the
payment of all legal fees incurred by the Institution in resolving such dispute
or controversy.
21. INDEMNIFICATION.
(a) The Institution shall provide Executive (including his heirs,
executors and administrators) with coverage under a standard directors' and
officers' liability insurance policy at its expense and shall indemnify
Executive (and his heirs, executors and administrators) to the fullest extent
permitted under New York law against all expenses and liabilities reasonably
incurred by him in connection with or arising out of any action, suit or
proceeding in which he may be involved by reason of his having been a director
or officer of the Institution (whether or not he continues to be a director or
officer at the time of incurring such expenses or liabilities), such expenses
and liabilities to include, but not be limited to, judgments, court costs and
attorneys' fees and the cost of reasonable settlements.
-12-
22. SUCCESSOR TO THE INSTITUTION.
The Institution shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Institution or the Holding
Company, expressly and unconditionally to assume and agree to perform the
Institution's obligations under this Agreement, in the same manner and to the
same extent that the Institution would be required to perform if no such
succession or assignment had taken place.
[Remainder of Page Intentionally Left Blank]
-13-
SIGNATURES
IN WITNESS WHEREOF, The Xxxxxx Savings Bank and Xxxxxx Bancorp, Inc. have
caused this Agreement to be executed and their seals to be affixed hereunto by
their duly authorized officers and directors, and Executive has signed this
Agreement, on the 16th day of February, 1999.
ATTEST: THE XXXXXX SAVINGS BANK
/s/ R. Xxxxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
--------------------------- ---------------------------------
R. Xxxxxxx Xxxxx Xxxxxx X. Xxxxxxx
Secretary For The Board of Directors
[SEAL]
ATTEST: XXXXXX BANCORP, INC.
(Guarantor)
/s/ R. Xxxxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
-------------------- --------------------------------
R. Xxxxxxx Xxxxx Xxxxxx X. Xxxxxxx
Secretary For the Board of Directors
[SEAL]
WITNESS:
s/ Xxxx X. Xxxxxxxxx /s/ A. Xxxxxx Xxxx
-------------------------------- -------------------------------
Xxxx X. Xxxxxxxxx A. Xxxxxx Xxxx
Executive
-14-
