1
EXHIBIT 10.11
BANK EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into as of June 1, 1999, by and between XXXXXX FEDERAL SAVINGS BANK, a savings
bank organized and operating under the federal laws of the United States and
having an office at 00 Xxxx 000xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Bank") and
XXXXXXX X. XXXXXX, an individual residing [Address omitted] ("Executive").
For purposes of this Agreement Xxxxxx Bancorp, Inc. will be referred to as (the
"Holding Company").
W I T N E S S E T H :
WHEREAS, subject to the approval of the applicable federal and
state bank regulators, for purposes of securing the Executive's services for the
Bank, the Board of Directors of the Bank has approved and authorized the
execution of this Agreement with the Executive; and
WHEREAS, the Executive is willing to serve the Bank on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and conditions hereinafter set forth and, the Bank and the
Executive hereby agree as follows:
SECTION 1. EMPLOYMENT.
The Bank agrees to employ Executive, and the Executive hereby
agrees to such employment, during the period and upon the terms and conditions
set forth in this Agreement.
SECTION 2. EMPLOYMENT PERIOD; REMAINING UNEXPIRED EMPLOYMENT
PERIOD.
(a) The terms and conditions of this Agreement shall be and
remain in effect during the period of employment established under this Section
2 ("Employment Period"). The Employment Period shall be for an initial term of
three years beginning on June 1, 1999 (the "Effective Date"). The Board shall
review the Executive's performance of services under this Agreement on an annual
basis. Prior to the second anniversary of the date of this Agreement and on each
anniversary date thereafter (each, an "Anniversary Date"), the Board shall
review the terms of this Agreement and the Executive's performance of services
hereunder and may, in the absence of objection from the Executive, approve a
one-year extension of the Employment Agreement. In such event, the Employment
Agreement shall be extended to the second anniversary of the relevant
Anniversary Date.
Page 1 of 22
2
(b) For all purposes of this Agreement, the term "Remaining
Unexpired Employment Period" as of any date shall mean the period beginning on
such date and ending on the Anniversary Date on which the Employment Period (as
extended pursuant to Section 2(a) of this Agreement) is then scheduled to
expire.
(c) Nothing in this Agreement shall be deemed to prohibit the
Bank at any time from terminating Executive's employment during the Employment
Period with or without prior notice for any reason; provided, however, that the
relative rights and obligations of the Bank and Executive in the event of any
such termination shall be determined under this Agreement.
SECTION 3. DUTIES.
Executive shall serve as President and Chief Executive Officer
of the Bank, and as a member of the Board, having such power, authority and
responsibility, including without limitation the power to hire and dismiss any
employees of the Bank, and performing such duties as are prescribed by or under
the By-Laws of the Bank and as are customarily associated with such positions.
Executive shall devote her full business time and attention (other than during
weekends, holidays, approved vacation periods, and periods of illness or
approved leaves of absence) to the business and affairs of the Bank and shall
use her best efforts to advance the interests of the Bank.
SECTION 4. BASE SALARY.
In consideration for the services to be rendered by Executive
hereunder, the Bank shall pay to Executive a base salary at an initial annual
rate of Two Hundred and Thirty-Five Thousand Dollars ($235,000.00) payable in
approximately equal installments in accordance with the Bank's customary payroll
practices for senior officers. Each May, prior to the Anniversary Date of the
Effective Date of this Agreement occurring during the Employment Period, the
Board shall review Executive's annual rate of salary and may, in its discretion,
approve an increase therein.
SECTION 5. INCENTIVE COMPENSATION.
(a) Upon the Effective Date of this Agreement, the Executive
shall be granted incentive stock options under the Holding Company's 1995 Stock
Option Plan to purchase up to Thirty Thousand (30,000) shares of the Holding
Company's common stock, par value $.01 per share ("Options") at an exercise
price equal to the "Market Value" (as such term is defined in the 1995 Stock
Option Plan) of a share of the Holding Company's common stock on the date of
grant. Of the foregoing Option grant, Options granted with respect to the
purchase of Fifteen Thousand (15,000) shares of the Holding Company's common
stock shall vest and become immediately exercisable on the Effective Date and
the balance of these Options shall vest and become exercisable in equal
installments over a three-year period, with Five Thousand (5,000) Options
becoming 100% vested and fully exercisable on the first anniversary of the
Effective Date and Five Thousand (5,000) additional Options becoming 100% vested
and fully exercisable on the second and third immediately succeeding
anniversaries of the Effective Date. The foregoing grant of Options to the
Executive (and all rights and privileges relating to such Options) shall be
memorialized in a written stock option
Page 2 of 22
3
agreement to be entered into by and between the Holding Company and the
Executive which shall be governed by, and incorporate by reference, the terms
and provisions of the Holding Company's 1995 Stock Option Plan and the terms of
this Agreement, as applicable. In addition, each May, prior to the anniversary
of the Effective Date of this Agreement, the Board of Directors of the Holding
Company shall review the Executive's performance under this Agreement and may,
in its discretion, grant additional stock option awards to the Executive under
the 1995 Stock Option Plan; provided, however, that no fewer than Thirty
Thousand (30,000) Options shall be granted to the Executive on June 1, 2000 and
such Options shall vest in three annual installments on each anniversary of such
grant date. The Executive acknowledges and agrees that the grant of all
additional stock option awards may be subject to the approval of the Holding
Company's shareholders to the proposed amendment to the 1995 Option Plan to
increase its share reserve.
(b) The Executive shall also be eligible to receive an annual
incentive compensation payment ("Incentive Compensation Award") in a dollar
amount to be determined by the Board, in its discretion, based upon the
Executive's performance during the applicable Incentive Compensation Award
measurement period ("Measurement Period") agreed upon by the Board and the
Executive. The dollar amount of the Incentive Compensation Award payable to the
Executive with respect to the applicable Measurement Period shall be determined
by the Board in May of each year or as soon as practicable after the release of
the audited consolidated financial statements of the Holding Company and the
Bank. The Incentive Compensation Award shall be paid to the Executive (less all
applicable tax withholding) in a single sum cash payment as soon as
administratively feasible after the date the dollar amount of the Incentive
Compensation Award has been determined by the Board. The Board's determination
of the dollar amount of the Executive's Incentive Compensation Award shall be
based upon the Executive's attainment of one or more of the performance goal
categories ("Performance Goals") set forth in Appendix A hereof; provided,
however, the Holding Company and the Executive agree that the Performance Goals
contained in Appendix A are illustrative rather than exhaustive and are evidence
of the intent of the parties that the dollar amount of the Incentive
Compensation Award be based on the Board's evaluation of the Executive's
performance during the applicable Measurement Period. The attainment of
Performance Goals is expected to result in an Incentive Compensation Award in
the range of twenty percent (20%) to fifty percent (50%) of the Executive's base
salary, although the Board may, in its discretion, make an Incentive
Compensation Award outside of the aforementioned range.
(c) Upon the Effective Date of this Agreement, the Executive
shall also be granted a restricted stock award ("Restricted Stock Award") under
the Holding Company's Management Recognition Plan with respect to Seventy-Five
Hundred (7,500) shares of the Holding Company's common stock. The Restricted
Stock Award (and all rights and privileges relating to such Award) shall be
memorialized in a written Restricted Stock Award Notice and Agreement to be
entered into between the Holding Company and the Executive which shall be
governed by, and incorporate by reference, the terms and provisions of the
Holding Company's Management Recognition Plan and the terms of this Agreement,
as applicable. The Restricted Stock Award shall vest in equal installments over
a three-year period, with Twenty-Five Hundred (2,500) shares of the Restricted
Stock Award becoming vested and distributable to the Executive on each of the
first, second and third immediately succeeding anniversaries of the Effective
Date of this Agreement; provided, however, the Board of Directors of the Holding
Company shall have the discretion to accelerate the vesting of all or a portion
of the foregoing Restricted Stock Award based upon the Executive's
Page 3 of 22
4
attainment of one or more of the Performance Goals set forth in Appendix A of
this Agreement during any applicable Measurement Period.
SECTION 6. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
During the Employment Period, Executive shall be treated as an
employee of the Bank and shall be entitled to participate in and receive
benefits under any and all qualified or non-qualified retirement, pension,
savings, profit-sharing or stock bonus plans, any and all group life, health
(including hospitalization, medical and major medical), dental, accident and
long term disability insurance plans, and any other employee benefit and
compensation plans (including, but not limited to, any incentive compensation
plans or programs, stock option and appreciation rights plans and restricted
stock plans) (collectively, "Benefit Plans") as may from time to time be
maintained by, or cover employees of, the Bank, in accordance with the terms and
conditions of such employee benefit plans and programs and compensation plans
and programs and consistent with the Bank's customary practices. In addition,
the Bank shall provide to the Executive at the Bank's expense, with a term life
insurance policy in the amount of One Million Dollars ($1,000,000) payable to
the beneficiary designated by the Executive. Nothing paid to the Executive under
any such policy, plan or arrangement will be deemed to be in lieu of any other
compensation to which the Executive is entitled under this Agreement.
SECTION 7. SUPPLEMENTAL EXECUTIVE RETIREMENT BENEFITS.
Without limiting the generality of Section 6 hereof, in the
event that the amount of benefits or contributions Executive would have received
or accrued under the benefit formulas of the tax-qualified Benefit Plans of the
Bank is limited by Sections 401(a)(17), 401(k)(3), 401(m), 402(g) or 415 of the
Internal Revenue Code of 1986 ("Benefit Limitations"), the Bank shall provide
Executive with supplemental benefits equal to the benefits attributable to
employer contributions that she would have received if the Benefit Limitations
did not apply. Such supplemental benefits shall be provided on a non-qualified,
deferred compensation basis and shall be determined under the benefit formulas
and actuarial assumptions of the applicable Benefit Plans. Payment of such
supplemental benefits shall be made in the same manner and at the same time as
payment of the Executive's benefits under the applicable Benefit Plan.
SECTION 8. INDEMNIFICATION.
(a) During the Employment Period and for a period of six (6)
years thereafter, the Bank shall cause Executive to be covered by and named as
an insured under any policy or contract of insurance obtained by it to insure
directors and officers against personal liability for acts or omissions in
connection with service as an officer or director of the Bank, or service in
other capacities at the request of the Bank. The coverage provided to Executive
pursuant to this Section 8 shall be of the same scope and on the same terms and
conditions as the coverage (if any) provided to other officers or directors of
the Bank.
Page 4 of 22
5
(b) To the maximum extent permitted under applicable law,
during the Employment Period and for a period of six (6) years thereafter, the
Bank shall indemnify Executive against and hold Executive harmless from any
costs, liabilities, losses and exposures to the fullest extent and on the most
favorable terms and conditions that similar indemnification is offered to any
director or officer of the Bank or affiliate thereof. This Section 8(b) shall
not be applicable where Section 21 is applicable.
SECTION 9. OUTSIDE ACTIVITIES.
Executive may serve as a member of the boards of directors of
such business, community and charitable organizations as Executive may disclose
to and as may be approved by the Board (which approval shall not be unreasonably
withheld); provided, however, that such service shall not materially interfere
with the performance of her duties under this Agreement. Executive may also
engage in personal business and investment activities which do not materially
interfere with the performance of her duties hereunder; provided, however, that
such activities are not prohibited under any code of conduct or investment or
securities trading policy established by the Bank and generally applicable to
all similarly situated executives. The Executive may also serve as an officer or
director of the Holding Company on such terms and conditions as the Bank and the
Holding Company may mutually agree upon, and such service shall not be deemed to
materially interfere with the Executive's performance of her duties hereunder or
otherwise to result in a material breach of this Agreement.
SECTION 10. WORKING FACILITIES AND EXPENSES.
Executive's principal place of employment shall be at the
Bank's executive offices at the address first above written, or at such other
location within New York City at which the Bank shall maintain its principal
executive offices, or at such other location as the Bank and Executive may
mutually agree upon. The Bank shall provide Executive at her principal place of
employment with a private office, secretarial services, reimbursement or direct
payment for business-related car expenses not to exceed Fifteen Hundred Dollars
($1,500.00) per month and other support services and facilities suitable to her
position with the Bank and necessary or appropriate in connection with the
performance of her assigned duties under this Agreement. The Bank shall
reimburse the Executive for her ordinary and necessary business expenses plus
membership fees, dues, capital contributions or such other business-related
charges required for, or related to, membership or participation in such clubs
and organizations as Executive and the Bank shall mutually agree are necessary
and appropriate for business purposes, and her travel and entertainment expenses
incurred in connection with the performance of her duties under this Agreement,
in each case upon presentation to the Bank of an itemized account of such
expenses in such form as the Bank may reasonably require. The Bank shall pay the
reasonable legal fees and expenses of Xxxxxx & Xxxxxxx, counsel to the
Executive, in connection with the negotiation of this Agreement.
Page 5 of 22
6
SECTION 11. TERMINATION OF EMPLOYMENT.
Executive shall be entitled to the severance benefits
described in Section 12 hereof in the event that her employment with the Bank
terminates during the Employment Period under any of the following
circumstances:
(a) prior to a Change in Control, as defined in Section 15
hereof:
(i) the termination by the Bank of the Executive's
employment hereunder for any reason other than Disability, as
defined in Section 13 hereof, Retirement, as defined in
Section 14(d) hereof, or Cause, as defined in Section 14(a)
hereof; or
(ii) Executive's voluntary resignation from
employment with the Bank upon (60) days written notice given
within six full calendar months following:
(A) the failure of the Board to appoint or
re-appoint or elect or re-elect Executive to the
office of President and Chief Executive Officer of
the Bank or the failure of the Board of the Holding
Company to appoint or re-appoint or elect or re-elect
Executive to the office of President and Chief
Executive Officer of the Holding Company; or
(B) the failure of the stockholders of the
Bank to elect or re-elect Executive as a member of
the Board, or the failure of the Board (or the
nominating committee thereof) to nominate Executive
for such election or re-election; or
(C) the expiration of a thirty (30) day
period following the date on which Executive gives
written notice to the Bank of its the material
failure, whether by amendment of the Bank's Federal
Stock Charter or By-laws, action of the Board, or the
Bank's stockholders or otherwise, to vest in
Executive the functions, duties, or responsibilities
attributable to the positions described in Section 3
of this Agreement, unless, during such thirty (30)
day period, the Bank cures such failure in a manner
determined by Executive, in her discretion, to be
satisfactory; or
(D) the expiration of a thirty (30) day
period following the date on which Executive gives
written notice to the Bank of its material breach of
any term, condition or covenant contained in this
Agreement (including, without limitations, any
reduction of Executive's rate of base salary in
effect from time to time, any change in the terms and
conditions of any compensation or benefit program in
which Executive participates, or change in
Executive's fringe
Page 6 of 22
7
benefits and perquisites, which, either individually
or together with other changes, has a material
adverse effect on the aggregate value of her total
compensation package), unless, during such thirty
(30) day period, the Bank cures such failure in a
manner determined by Executive, in her discretion, to
be satisfactory; or
(E) the relocation of Executive's principle
place of employment by more than 30 miles from its
location at the effective date of this Agreement or
any change in working conditions at such principal
place of employment which Executive, in her
reasonable discretion, determines to be embarrassing,
derogatory or otherwise adverse; or
(b) subsequent to a Change in Control, as defined in Section
15, Executive's voluntary or involuntary resignation or the termination by the
Bank of Executive's employment hereunder, for any reason, other than death,
Disability or Cause, then subject to Section 28, the Bank shall provide the
benefits and pay to the Executive the amounts described in Section 12.
SECTION 12. SEVERANCE BENEFITS.
Upon the termination of Executive's employment with the Bank
under the circumstances described in Section 11 of this Agreement, the Bank
shall pay and provide to Executive (or, in the event of her death following her
termination of employment, to her estate):
(a) her earned but unpaid compensation (including, without
limitation, all items which constitute wages under Section 190.1 of the
New York Labor Law and the payment of which is not otherwise provided
for under this Section 12) as of the date of the termination of her
employment with the Bank, such payment to be made at the time and in
the manner prescribed by law applicable to the payment of wages but in
no event later than thirty (30) days after termination of employment;
(b) the benefits, if any, to which Executive is entitled as a
former employee under the Benefit Plans maintained by the Bank for
their officers and employees;
(c) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long term disability
insurance benefits, and continued benefits under the term life
insurance policy described in Section 6, in addition to that provided
pursuant to Section 12(b), and after taking into account the coverage
provided by any subsequent employer, if and to the extent necessary to
provide coverage for Executive and her family equivalent to the
coverage to which Executive would be entitled under the applicable
Benefit Plans (as in effect on the date of her termination of
employment, or, if her termination of employment occurs after a Change
in Control, on the date of such Change in Control, whichever benefits
are greater), if Executive had continued working for the Bank during
the Remaining
Page 7 of 22
8
Unexpired Employment Period, and during such period, Executive received
the highest annual rate of compensation achieved during that portion of
the Employment Period prior to Executive's termination of employment,
such benefits to be provided without regard to whether Executive's
continued participation in the applicable Benefit Plans is prohibited
during such period and to include continuation coverage for Executive
and members of Executive's family following the expiration of the
Remaining Unexpired Employment Period equivalent to the continuation
coverage that they would be entitled to under the Consolidated Omnibus
Budget Reconciliation Act ("COBRA") if such benefits were provided
under the applicable Benefit Plans; and
(d) within thirty (30) days following her termination of
employment with the Bank, a lump sum payment, in an amount equal to the
present value of the salary that Executive would have earned if
Executive had continued working for the Bank during the Remaining
Unexpired Employment Period at the highest annual rate of salary
achieved during that portion of the Employment Period which is prior to
Executive's termination of employment with the Bank, where such present
value is to be determined using a discount rate equal to the applicable
short-term federal rate prescribed under Section 1274(d) of the
Internal Revenue Code of 1986 ("Code"), compounded using the
compounding period corresponding to the Bank's regular payroll periods
for its officers;
(e) within thirty (30) days following her termination of
employment with the Bank, a lump sum payment in an amount equal to the
excess, if any, of:
(i) the present value of the aggregate benefits to
which Executive would be entitled under any and all qualified
and non-qualified defined benefit pension plans maintained by,
or covering employees of, the Bank, if Executive were 100%
vested thereunder and had continued working for the Bank
during the Remaining Unexpired Employment Period, such
benefits to be determined as of the date of termination of
employment by adding to the service actually recognized under
such plans an additional period equal to the Remaining
Unexpired Employment Period and by including in the
compensation recognized under such plans all amounts payable
under Sections 12(a), (d), (h), (i) and (j) which would be
credited under such plans had they been paid over the
Remaining Unexpired Employment Period; over
(ii) the present value of the benefits to which
Executive is actually entitled under such defined benefit
pension plans as of the date of her termination;
where such present values are to be determined using the mortality
table ("Applicable Mortality Table") and interest rate ("Applicable
Interest Rate") prescribed under Section 417(e)(3) of the Code;
Page 8 of 22
9
(f) within thirty (30) days following her termination of
employment with the Bank, a lump sum payment in an amount equal to the
present value of the additional employer contributions to which
Executive would have been entitled under any and all qualified and
non-qualified defined contribution plans maintained by, or covering
employees of, the Bank, and if Executive were 100% vested thereunder
and had continued working for the Bank and the Bank during the
Remaining Unexpired Employment Period at the highest annual rate of
compensation achieved during that portion of the Employment Period
which is prior to Executive's termination of employment and making the
maximum amount of employee contributions, if any, required under such
plan or plans, such present value to be determined on the basis of a
discount rate, compounded using the compounding period that corresponds
to the frequency with which employer contributions are made to the
relevant plan, equal to the Applicable Interest Rate;
(g) within thirty (30) days following her termination of
employment with the Bank, a lump sum payment in an amount equal to the
fair market value (determined as of the date of her termination of
employment, or, if her termination of employment occurs after a Change
in Control, on the date of such Change in Control, whichever value is
greater) of any stock that would have been allocated or awarded to
Executive under any and all stock-based qualified or non-qualified
employee benefit plan or plans maintained by, or covering employees of,
the Bank, if Executive were 100% vested thereunder and continued
working for the Bank during the Remaining Unexpired Employment Period
at the highest annual rate of compensation achieved during that portion
of the Employment Period which is prior to the Executive's termination
of employment;
(h) the payments that would have been made to Executive under
any cash bonus or long-term or short-term cash incentive compensation
plan maintained by, or covering employees of, the Bank if Executive had
continued working for the Bank during the Remaining Unexpired
Employment Period and had earned the maximum bonus or incentive award
in each calendar year that ends during the Remaining Unexpired
Employment Period, such payments to be equal to the product of:
(A) the maximum percentage rate at which an award was
ever available to Executive under such incentive compensation
plan; multiplied by
(B) the salary that would have been paid to Executive
during each such calendar year at the highest annual rate of
salary achieved during that portion of the Employment Period
which is prior to Executive's termination of employment with
the Bank:
such payments to be made (without discounting for early payment) within
thirty (30) days following Executive's termination of employment;
Page 9 of 22
10
(i) at the election of Executive made within thirty (30) days
following her termination of employment, upon the surrender of options
or appreciation rights issued to Executive under any stock option and
appreciation rights plan or program maintained by, or covering
employees of, the Bank, a lump sum payment in an amount equal to the
product of:
(i) the excess of (A) the fair market value of a
share of stock of the same class as the stock subject to the
option or appreciation right, determined as of the date of
termination of employment, over (B) the exercise price per
share for such option or appreciation right, as specified in
or under the relevant plan or program; multiplied by
(ii) the number of shares with respect to which
options or appreciation rights are being surrendered.
For purposes of this Section 12(i) and for purposes of determining
Executive's right following her termination of employment with the Bank
to exercise any options or appreciation rights not surrendered pursuant
hereto, Executive shall be deemed fully vested in all options and
appreciation rights under any stock option or appreciation rights plan
or program maintained by, or covering employees of, the Bank, even if
Executive is not vested under such plan or program;
(j) at the election of Executive made within thirty (30) days
following Executive's termination of employment, upon the surrender of
any shares awarded to Executive under any restricted stock plan
maintained by, or covering employees of, the Bank, a lump sum payment
in an amount equal to the product of:
(i) the fair market value of a share of stock of the
same class of stock granted under such plan, determined as of
the date of Executive's termination of employment; multiplied
by
(ii) the number of shares which are being
surrendered.
For purposes of this Section 12(j) and for purposes of determining
Executive's right following her termination of employment with the Bank
to any stock not surrendered pursuant hereto, Executive shall be deemed
fully vested in all shares awarded under any restricted stock plan
maintained by, or covering employees of, the Bank, even if Executive is
not vested under such plan;
(k) within thirty (30) days following her termination of
employment with the Bank, a lump sum payment in an amount equal to the
present value of the additional benefits to which the Executive would
have been entitled under Section 7 of this Agreement if Executive had
continued working for the Bank during the Remaining Unexpired
Employment Period at the highest annual rate of salary achieved during
that portion of the Employment Period which is prior to Executive's
termination of employment, where such present value is to be determined
using the
Page 10 of 22
11
Applicable Mortality Table and Applicable Interest Rate and assuming
that the Benefit Limitations as in effect at the time of Executive's
termination remained in effect during the Remaining Unexpired
Employment Period.
The Bank and Executive hereby stipulate that the damages which may be incurred
by Executive following any termination of employment under the circumstances
described in Section 11 of this Agreement are not capable of accurate
measurement as of the date first above written and that the payments and
benefits contemplated by this Section 12 constitute reasonable damages under the
circumstances and shall be payable without any requirement of proof of actual
damage and without regard to Executive's efforts, if any, to mitigate damages.
The Bank and the Executive further agree that the Bank may condition the payment
and benefits (if any) due under Sections 12(c), (d), (e), (f), and (h) on the
receipt of the Executive's resignation from any and all positions which she
holds as an officer, director or committee member with respect to the Bank, the
Holding Company, or any subsidiary or affiliate of either of them.
SECTION 13. TERMINATION FOR DISABILITY.
(a) If, as a result of Executive's incapacity due to physical
or mental illness, she shall have been absent from her duties with the Bank on a
full-time basis for six (6) consecutive months, and within thirty (30) days
after written notice of potential termination is given she shall not have
returned to the full-time performance of her duties, the Bank may terminate
Executive's employment for "Disability" and she shall be entitled to the
payments and benefits provided for under Sections 13(b) and (c). For purposes of
this Section 13(a), "Disability" shall have the same meaning set forth in the
group long-term disability policy or plan maintained by the Bank for employees
as in effect on the effective date of this Agreement, or if no such plan or
policy is maintained on such date, "Disability" shall mean a condition of total
incapacity, mental or physical, for the performance of the Executive's stated
duties hereunder, which incapacity shall have been determined, by a doctor
selected by the Bank and acceptable to the Executive or her legal
representatives, is likely to be permanent.
(b) The Bank will pay Executive, as disability pay,
three-quarters (3/4) of Executive's rate of salary as in effect pursuant to
Section 4 on the effective date of such termination, payable in approximately
equal installments in accordance with the Bank's customary payroll practices.
These disability payments shall commence on the effective date of Executive's
termination and will end on the earlier of (i) the date Executive returns to the
full-time employment of the Bank in the same capacity as she was employed prior
to her termination for Disability and pursuant to an employment agreement
between Executive and the Bank; (ii) Executive's full-time employment by another
employer; (iii) Executive attaining the age of 65; (iv) Executive's death; or
(v) the expiration of the term of this Agreement. The disability pay shall be
reduced by the amount, if any, paid to the Executive under any plan of the Bank
providing disability benefits to the Executive.
(c) The Bank will cause to be continued life, medical, dental
and disability coverage substantially identical to the coverage maintained by
the Bank for Executive prior to her termination for Disability. This coverage
and payments shall cease upon the earlier of (i) the date
Page 11 of 22
12
Executive returns to the full-time employment of the Bank, in the same capacity
as she was employed prior to her termination for Disability and pursuant to an
employment agreement between Executive and the Bank; (ii) Executive's full-time
employment by another employer; (iii) Executive's attaining the age of 65; (iv)
the Executive's death; or (v) the expiration of the term of this Agreement.
(d) Notwithstanding the foregoing, there will be no reduction
in the compensation otherwise payable to Executive during any period during
which Executive is incapable of performing her duties hereunder by reason of
temporary disability.
SECTION 14. TERMINATION WITHOUT ADDITIONAL BANK LIABILITY.
In the event that Executive's employment with the Bank shall
terminate during the Employment Period on account of:
(a) the discharge of Executive for "Cause," which, for
purposes of this Agreement, shall mean personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties, willful
violation of any law, rule or regulation (other than traffic violations
or similar offenses), or final cease and desist order, or any material
breach of this Agreement, in such case as measured against standards
generally prevailing at the relevant time in the savings and community
banking industry; provided, however, that the Executive shall not be
deemed to have been discharged for Cause unless and until she shall
have received a written notice of termination from the Board,
accompanied by a resolution duly adopted by affirmative vote of a
majority of the entire Board at a meeting called and held for such
purpose (after reasonable notice to the Executive and a reasonable
opportunity for the Executive to make oral and written presentations to
the members of the Board, on her own behalf, or through a
representative, who may be her legal counsel, to refute the grounds for
the proposed determination) finding that in the good faith opinion of
the Board grounds exist for discharging the Executive for Cause; or
(b) Executive's voluntary resignation from employment with the
Bank for reasons other than those specified in Section 11;
(c) Executive's death; or
(d) Executive's "Retirement," which, for purposes of this
Agreement, shall mean Executive's voluntary termination at a time when
she is eligible for a normal retirement benefit under the qualified
defined benefit pension plan or plans of the Bank or the Bank, or if no
such plan is currently maintained, the Executive's voluntary
termination at or after the attainment of age 65;
then the Bank shall have no further obligations under this Agreement, other than
the payment to Executive (or, in the event of her death, to her estate) of her
earned but unpaid salary and, in the event of the Executive's death or
Retirement, her earned but unpaid Incentive Compensation Award,
Page 12 of 22
13
as of the date of the termination of her employment, and the provision of such
other benefits, if any, to which Executive is entitled as a former employee
under the employee benefit plans and programs and compensation plans and
programs maintained by, or covering employees of, the Bank.
SECTION 15. CHANGE IN CONTROL.
A Change in Control of the Bank ("Change in Control") shall be
deemed to have occurred upon the happening of any of the following events:
(a) approval by the stockholders of the Bank of a transaction
that would result in the reorganization, merger or consolidation of the
Bank, respectively, with one or more other persons, other than a
transaction following which:
(i) at least fifty-one percent (51%) of the equity
ownership interests of the entity resulting from such
transaction are beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) in substantially the
same relative proportions by persons who, immediately prior to
such transaction, beneficially owned (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) at least
fifty-one percent (51%) of the outstanding equity ownership
interests in the Bank; and
(ii) at least fifty-one percent (51%) of the
securities entitled to vote generally in the election of
directors of the entity resulting from such transaction are
beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) in substantially the same
relative proportions by persons who, immediately prior to such
transaction, beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) at least fifty-one
percent (51%) of the securities entitled to vote generally in
the election of directors of the Bank;
(b) the acquisition of all or substantially all of the assets
of the Bank or beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty percent (20%) or more of
the outstanding securities of the Bank entitled to vote generally in
the election of directors by any person or by any persons acting in
concert, or approval by the stockholders of the Bank of any transaction
which would result in such an acquisition;
(c) a complete liquidation or dissolution of the Bank, or
approval by the stockholders of the Bank of a plan for such liquidation
or dissolution;
(d) the occurrence of any event if, immediately following such
event, at least fifty percent (50%) of the members of the Board do not
belong to any of the following groups:
Page 13 of 22
14
(i) individuals who were members of the Board on the
date of this Agreement; or
(ii) individuals who first became members of the
Board after the date of this Agreement either:
(A) upon election to serve as a member of
the Board by affirmative vote of three-quarters of
the members of such Board, or of a nominating
committee thereof, in office at the time of such
first election; or
(B) upon election by the stockholders of the
Bank to serve as a member of the Board, but only if
nominated for election by affirmative vote of
three-quarters of the members of the Board, or of a
nominating committee thereof, in office at the time
of such first nomination;
provided, however, that such individual's election or nomination did
not result from an actual or threatened election contest (within the
meaning of Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies or consents
(within the meaning of Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act) other than by or on behalf of the Board; or
(e) any event which would be described in Section 14(a), (b),
(c) or (d) if the term "Holding Company" were substituted for the term
"Bank" therein.
In no event, however, shall a Change in Control be deemed to have occurred as a
result of any acquisition of securities or assets of the Bank, the Holding
Company, or a subsidiary of either of them, by the Bank, the Holding Company, or
a subsidiary of either of them, or by any employee benefit plan maintained by
any of them. For purposes of this Section 15, the term "person" shall have the
meaning assigned to it under Section 13(d)(3) or 14(d)(2) of the Exchange Act.
SECTION 16. COVENANT NOT TO COMPETE.
Executive hereby covenants and agrees that, in the event of
her termination of employment with the Bank prior to the expiration of the
Employment Period for any reason other than the circumstances provided under
Section 11 hereof, for a period of one (1) year following the date of her
termination of employment with the Bank (or, if less, for the Remaining
Unexpired Employment Period), Executive shall not, without the written consent
of the Bank, become an officer, employee, consultant, director or trustee of any
savings bank, savings and loan association, savings and loan holding company,
bank or bank holding company, or any direct or indirect subsidiary or affiliate
of any such entity, that competes with the business of the Bank in any city,
town or county in which the Bank has an office or has filed an application for
regulatory approval to establish an office as of the date of Executive's
termination of employment; provided, however, that if Executive's employment
shall be terminated on account of Disability as provided in Section
Page 14 of 22
15
13 of this Agreement, this Section 16 shall not prevent Executive from accepting
any position or performing any services if (a) Executive first offers, by
written notice, to accept a similar position with, or perform similar services
for, the Bank on substantially the same terms and conditions and (b) the Bank
declines to accept such offer within ten (10) days after such notice is given.
SECTION 17. CONFIDENTIALITY.
Unless Executive obtains the prior written consent of the
Bank, Executive shall keep confidential and shall refrain from using for the
benefit of herself, or any person or entity other than the Bank or any entity of
which the Bank is a subsidiary, any material document or information obtained
from the Bank, or from its parent or subsidiaries, in the course of her
employment with any of them concerning their properties, operations or business
(unless such document or information is readily ascertainable from public or
published information or trade sources or has otherwise been made available to
the public through no fault of her own) until the same ceases to be material (or
becomes so ascertainable or available); provided, however, that nothing in this
Section 17 shall prevent Executive, with or without the Bank's consent, from
participating in or disclosing documents or information in connection with any
judicial or administrative investigation, inquiry or proceeding to the extent
that such participation or disclosure is required under applicable law.
SECTION 18. NO EFFECT ON EMPLOYEE BENEFIT PLANS OR PROGRAMS.
The termination of Executive's employment during the term of
this Agreement or thereafter, whether by the Bank or by Executive, shall have no
effect on the rights and obligations of the parties hereto under the Bank's
qualified or non-qualified retirement, pension, savings, thrift, profit-sharing
or stock bonus plans, group life, health (including hospitalization, medical and
major medical), dental, accident and long term disability insurance plans or
such other employee benefit plans or programs, or compensation plans or
programs, as may be maintained by, or cover employees of, the Bank from time to
time.
SECTION 19. SUCCESSORS AND ASSIGNS.
This Agreement will inure to the benefit of and be binding
upon Executive, her legal representatives and testate or intestate distributees,
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. Failure of the Bank to obtain from any successor
its express written assumption of the Bank's obligations hereunder at least
sixty (60) days in advance of the scheduled effective date of any such
succession shall be deemed a material breach of this Agreement.
SECTION 20. NOTICES.
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in
Page 15 of 22
16
writing and shall be deemed to have been given at such time as it is delivered
personally, or five (5) days after mailing if mailed, postage prepaid, by
registered or certified mail, return receipt requested, addressed to such party
at the address listed below or at such other address as one such party may by
written notice specify to the other party:
If to Executive:
Xx. Xxxxxxx X. Xxxxxx
[Address omitted]
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
If to the Bank:
Xxxxxx Federal Savings Bank
00 Xxxx 000xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chairman of the Compensation Committee
of the Board of Directors
with a copy to:
Xxxxxxx Xxxxxxxx & Wood
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx, Esq.
SECTION 21. INDEMNIFICATION FOR ATTORNEYS' FEES.
The Bank shall indemnify, hold harmless and defend Executive
against reasonable costs, including legal fees, incurred by Executive in
connection with or arising out of any action, suit or proceeding in which
Executive may be involved, as a result of her efforts, in good faith, to defend
or enforce the terms of this Agreement; provided, however, that the Executive
shall have substantially prevailed on the merits pursuant to a judgment, decree,
or order of a court of competent jurisdiction or of an arbitrator in an
arbitration proceeding, or in a settlement. For purposes of this Agreement, any
settlement agreement which provides for payment of any amounts in settlement of
Page 16 of 22
17
the Bank's obligations hereunder shall be conclusive evidence of Executive's
entitlement to indemnification hereunder, and any such indemnification payments
shall be in addition to amounts payable pursuant to such settlement agreement,
unless such settlement agreement expressly provides otherwise.
SECTION 22. 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 23. 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 24. COUNTERPARTS.
This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
SECTION 25. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced
in accordance with the federal laws of the United States and, to the extent that
federal law is inapplicable, in accordance with the laws of the State of New
York applicable to contracts entered into and to be performed entirely within
the State of New York.
SECTION 26. HEADINGS AND CONSTRUCTION.
The headings of Sections in this Agreement are for convenience
of reference only and are not intended to qualify the meaning of any Section.
Any reference to a Section number shall refer to a Section of this Agreement,
unless otherwise stated.
SECTION 27. 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
Page 17 of 22
18
representations relating to the subject matter hereof, including all terms of
the Prior Agreement between the Bank and Executive. No modifications of this
Agreement shall be valid unless made in writing and signed by the parties
hereto. No provision of this Agreement shall be interpreted to mean that
Executive is subject to receiving fewer benefits than those available to her
without reference to this Agreement.
SECTION 28. REQUIRED REGULATORY PROVISIONS.
The following provisions are included for the purpose of
complying with various laws, rules and regulations applicable to the Bank:
(a) Notwithstanding anything herein contained to the contrary,
in no event shall the aggregate amount of compensation payable to the
Executive under Section 12 hereof (exclusive of amounts described in
Sections 12(a), (i) and (j)) exceed three times the Executive's average
annual total compensation for the last five consecutive calendar years
to end prior to her termination of employment with the Bank (or for her
entire period of employment with the Bank if less than five calendar
years).
(b) Notwithstanding anything herein contained to the contrary,
any payments to the Executive by the Bank, whether pursuant to this
Agreement or otherwise, are subject to and conditioned upon their
compliance with Section 18(k) of the Federal Deposit Insurance Act
("FDI Act"), 12 U.S.C. Section 1828(k), and any regulations promulgated
thereunder.
(c) Notwithstanding anything herein contained to the contrary,
if the Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the affairs of the Bank pursuant
to a notice served under Section 8(e)(3) or 8(g)(1) of the FDI Act, 12
U.S.C. Section 1818(e)(3) or 1818(g)(1), the Bank's obligations under
this Agreement shall be suspended as of the date of service of such
notice, unless stayed by appropriate proceedings. If the charges in
such notice are dismissed, the Bank, in its discretion, may (i) pay to
the Executive all or part of the compensation withheld while the Bank's
obligations hereunder were suspended and (ii) reinstate, in whole or in
part, any of the obligations which were suspended.
(d) Notwithstanding anything herein contained to the contrary,
if the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued
under Section 8(e)(4) or 8(g)(1) of the FDI Act, 12 U.S.C.
Section 1818(e)(4) or (g)(1), all prospective obligations of the Bank
under this Agreement shall terminate as of the effective date of the
order, but vested rights and obligations of the Bank and the Executive
shall not be affected.
(e) Notwithstanding anything herein contained to the contrary,
if the Bank is in default (within the meaning of Section 3(x)(1) of the
FDI Act, 12 U.S.C. Section 1813(x)(1), all prospective obligations of
the Bank under this Agreement shall terminate as of the date of
default, but vested rights and obligations of the Bank and the
Executive shall not be affected.
Page 18 of 22
19
(f) Notwithstanding anything herein contained to the contrary,
all prospective obligations of the Bank hereunder shall be terminated,
except to the extent that a continuation of this Agreement is necessary
for the continued operation of the Bank: (i) by the Director of the
Office of Thrift Supervision ("OTS") or her designee or the Federal
Deposit Insurance Corporation ("FDIC"), at the time the FDIC enters
into an agreement to provide assistance to or on behalf of the Bank
under the authority contained in Section 13(c) of the FDI Act, 12
U.S.C. Section 1823(c); (ii) by the Director of the OTS or her designee
at the time such Director or designee approves a supervisory merger to
resolve problems related to the operation of the Bank or when the Bank
is determined by such Director to be in an unsafe or unsound condition.
The vested rights and obligations of the parties shall not be affected.
If and to the extent that any of the foregoing provisions shall cease to be
required by applicable law, rule or regulation, the same shall become
inoperative as though eliminated by formal amendment of this Agreement.
Page 19 of 22
20
IN WITNESS WHEREOF, the Bank has caused this Agreement to be
executed and Executive has hereunto set her hand, all as of the day and year
first above written.
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
XXXXXXX X. XXXXXX
ATTEST: XXXXXX FEDERAL SAVINGS BANK.
By
------------------------------- By /s/ Xxxxx X. Xxxxx
Secretary ----------------------------------
Name: Xxxxx X. Xxxxx
Title: Chairman of the Board
[Seal]
Page 20 of 22
21
[NOTARY PAGE INTENTIONALLY OMITTED]
Page 21 of 22
22
[APPENDIX A INTENTIONALLY OMITTED]
Page 22 of 22
