EXECUTIVE SUPPLEMENTAL RETIREMENT
INCOME AGREEMENT
FOR
XXXXXXX X. XXXXXX
BROOKLYN FEDERAL SAVINGS BANK
BROOKLYN, NEW YORK
MAY 1, 2005
EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
This Executive Supplemental Retirement Income Agreement ("Agreement"),
effective as of the 1st day of May, 2005, by and between BROOKLYN FEDERAL
SAVINGS BANK, Brooklyn, New York, a stock savings bank organized and existing
under the laws of the United States of America, hereinafter referred to as
"Bank," and Xxxxxxx X. Xxxxxx, a key employee and executive hereinafter referred
to as "Executive."
WITNESSETH:
WHEREAS, Executive is employed by the Bank;
WHEREAS, the Bank recognizes the valuable services heretofore performed
for it by Executive and wishes to encourage continued employment;
WHEREAS, Executive wishes to be assured that he will be entitled to a
certain amount of additional compensation for some definite period of time from
and after his retirement from active service with the Bank or other termination
of his employment and wishes to provide his beneficiary with benefits from and
after his death;
WHEREAS, the Bank has adopted a program of deferred compensation for
certain of its senior executives which program is evidenced by individual
agreements, such as this one, between the Bank and each participating executive
which agreements provide the terms and conditions upon which the Bank shall pay
such additional compensation to each executive after his retirement or other
termination of his employment and/or death benefits to his beneficiary after his
death;
WHEREAS, the Bank and Executive wish to modify and amend the existing
agreement to reflect certain tax law changes and to increase the retirement
benefits payable to Executive to more accurately reflect his increases in
compensation;
WHEREAS, the parties hereto intend that this Agreement be considered an
unfunded arrangement, maintained primarily to provide supplemental retirement
income for Executive, a member of a select group of management or highly
compensated employee of the Bank for purposes of the Employee Retirement Income
Security Act of 1974, as amended;
WHEREAS, the Bank has adopted this Executive Supplemental Retirement
Income Agreement which controls all issues relating to the Supplemental
Retirement Income Benefit as described herein;
WHEREAS, it is intended that the provisions of this Agreement shall
supersede any prior agreements relating to the subject matter hereto.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
SECTION I
DEFINITIONS
When used herein, the following words shall have the meanings below
unless the context clearly indicates otherwise:
1.1. "Act" means the Employee Retirement Income Security Act of 1974,
as it may be amended from time to time.
1.2. "Actuarial Assumptions" shall mean, with respect to any form of
benefit, the appropriate Actuarial Assumptions set forth on
Schedule A, as changed from time to time, based on the
recommendations of the Bank's Benefits Consultants and approved
by the Bank's Board of Directors, and as attached hereto and
made a part hereof.
1.3. "Annual Compensation" shall mean the sum of the base salary and
bonus paid or attributable to Executive during the Plan Year,
including amounts deferred at Executive's election to any
tax-qualified or non-qualified employee benefit plan of the Bank
or Company.
1.4. "Bank" means BROOKLYN FEDERAL SAVINGS BANK and any successor
thereto.
1.5. "Beneficiary" means the person or persons designated by
Executive, in writing, from time to time, as the beneficiary to
whom the deceased Executive's account is payable. If no
beneficiary is so designated, then Executive's Spouse, if
living, will be deemed the beneficiary. If Executive's Spouse is
not living, then the Children of Executive will be deemed the
beneficiary. If there are no living Children, then the Estate of
Executive will be deemed the beneficiary.
1.6. "Benefits Consultants" shall mean USI Executive and Professional
Benefits, or such other professional consultants appointed to
the position by the Board of Directors, from time to time.
1.7. "Cause" means personal dishonesty, willful misconduct, willful
malfeasance, 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), final cease-and-desist order, material
breach of any provision of this Agreement, or gross negligence
in matters of material importance to the Bank.
1.8. "Change in Control" of the Bank or the Company shall mean (i) a
change in ownership of the Bank or Company under paragraph (a)
below, or (ii) a change in effective control of the Bank or
Company under paragraph (b) below, or (iii) a change in the
ownership of a substantial portion of the assets of the Bank or
Company under paragraph (c) below:
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(a) Change in the ownership of the Bank or Company. A change
in the ownership of the Bank or Company shall occur on
the date that any one person, or more than one person
acting as a group (as defined in paragraph (b)),
acquires ownership of stock of the corporation that,
together with stock held by such person or group,
constitutes more than 50 percent of the total fair
market value or total voting power of the stock of such
corporation. However, if any one person or more than one
person acting as a group, is considered to own more than
50 percent of the total fair market value or total
voting power of the stock of a corporation, the
acquisition of additional stock by the same person or
persons is not considered to cause a change in the
ownership of the corporation (or to cause a change in
the effective control of the corporation (within the
meaning of paragraph (b) below). An increase in the
percentage of stock owned by any one person, or persons
acting as a group, as a result of a transaction in which
the corporation acquires its stock in exchange for
property will be treated as an acquisition of stock for
purposes of this section. This paragraph (a) applies
only when there is a transfer of stock of a corporation
(or issuance of stock of a corporation) and stock in
such corporation remains outstanding after the
transaction.
(b) Change in the effective control of the Bank or Company.
A change in the effective control of the Bank or Company
shall occur on the date that either (i) any one person,
or more than one person acting as a group (as determined
below), acquires (or has acquired during the 12-month
period ending on the date of the most recent acquisition
by such person or persons) ownership of stock of the
corporation possessing 35 percent or more of the total
voting power of the stock of such corporation; or (ii) a
majority of members of the corporation's board of
directors is replaced during any 12-month period by
directors whose appointment or election is not endorsed
by a majority of the members of the corporation's board
of directors prior to the date of the appointment or
election, provided that for purposes of this paragraph
(b)(ii), the term corporation refers solely to a
corporation for which no other corporation is a majority
shareholder. In the absence of an event described in
paragraph (i) or (ii), a change in the effective control
of a corporation will not have occurred. If any one
person, or more than one person acting as a group, is
considered to effectively control a corporation (within
the meaning of this paragraph (b)), the acquisition of
additional control of the corporation by the same person
or persons is not considered to cause a change in the
effective control of the corporation (or to cause a
change in the ownership of the corporation within the
meaning of paragraph (a)). Persons will not be
considered to be acting as a group solely because they
purchase or own stock of the same corporation at the
same time, or as a result of the same public offering.
(c) Change in the ownership of a substantial portion of the
Bank or Company's assets. A change in the ownership of a
substantial portion of the Bank or Company's assets
shall occur on the date that any one person, or more
than one person acting as a group (as determined below),
acquires (or has acquired
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during the 12-month period ending on the date of the
most recent acquisition by such person or persons)
assets from the corporation that have a total gross fair
market value equal to or more than 40% of the total
gross fair market value of all of the assets of the
corporation immediately prior to such acquisition or
acquisitions. For this purpose, gross fair market value
means the value of the assets of the corporation, or the
value of the assets being disposed of, determined
without regard to any liabilities associated with such
assets. There is no Change in Control Event under this
paragraph (c) when there is a transfer to an entity that
is controlled by the shareholders of the transferring
corporation immediately after the transfer.
(d) Each of the sub-paragraphs (a) through (c) of this
Section 1.7 shall be construed and interpreted
consistent with the requirements of Code Section 409A
and any Treasury regulations or other guidance issued
thereunder.
1.9. "Children" means Executive's children, both natural and adopted,
then living at the time payments are due the Children under this
Agreement.
1.10. "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
1.11. "Company" means Brooklyn Federal Bancorp, Inc., a Federally
chartered corporation which owns all of the issued and
outstanding stock of the Bank.
1.12. "Effective Date" shall be May 1, 2005.
1.13. "Estate" means the estate of Executive.
1.14. "Interest Factor" means six percent (6%) or such other rate as
is set forth on Schedule A, from time to time.
1.15. "Normal Retirement Date" means the first day of the month
coincident with or next following the later of (i) Executive's
sixty-fifth (65th) birthday, or (ii) the date of Executive's
actual retirement.
1.16. "Permanently and Totally Disabled" means Executive (i) is unable
to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, or (ii) is, by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12
months, receiving income replacement benefits for a period of
not less than 3 months under an accident and health plan
covering employees of the participant's employer.
1.17. "Plan Year" means the calendar year.
1.18. "Separation from Service" shall have the meaning set forth in
Code Section 409A and Treasury Regulations or other guidance
issued by the United States Treasury Department under Code
Section 409A.
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1.19. "Specified Employee" means with respect to a publicly traded
company, an employee of the Bank or Company who is also a "key
employee" as such term is defined in Section 416(i) of the Code,
without regard to paragraph 5 thereof.
1.20. "Spouse" means the individual to whom Executive is legally
married at the time of Executive's death.
1.21. "Supplemental Retirement Income Benefit" means an annual
retirement benefit equal to (a) sixty percent (60%) times the
highest of Executive's average Annual Compensation over any
consecutive thirty-six (36) month period during the last ten
(10) years prior to retirement, reduced by (b) the sum of (i)
the annuitized value (calculated using the Interest Factor and
appropriate Actuarial Assumptions) of Executive's retirement
benefits under the Bank's Money Purchase Pension Plan payable in
the form of a single life annuity for Executive's life with two
hundred forty (240) monthly payments guaranteed; (ii) the
annuitized value (calculated using the Interest Factor and the
appropriate Actuarial Assumptions) of the annual benefit to
Executive commencing at the Normal Retirement Date, and
attributable to employer contributions to the Bank's
tax-qualified 401(k) plan, payable in the form of a single life
annuity for Executive's life, with two hundred forty (240)
monthly payments guaranteed; and (iii) the annuitized value
(calculated using the Interest Factor and appropriate Actuarial
Assumptions) of Executive's annual Social Security retirement
benefits commencing at the Normal Retirement Date.
1.22. "Survivor's Benefit" means the benefit provided under Section
2.1 to Executive's Beneficiary if Executive dies while in active
employment of the Bank. The Survivor's Benefit shall be equal in
amount to the Supplemental Retirement Income Benefit payable to
Executive if Executive had lived until his Normal Retirement
Date, terminated employment on such date and commenced receiving
the Supplemental Retirement Income Benefit at that time. For
purposes of these calculations, Executive's Annual Compensation
shall be deemed to increase at the rate of five percent (5%) per
year to age 65 at the customary time of such normal annual
increase. In addition, for purposes of calculating the
Survivor's Benefit payable hereunder, the Bank's contributions
to (i) the Money Purchase Pension Plan, (ii) the 401(k) Plan,
and (iii) the employer's portion of Social Security shall be
deemed to continue until Executive's Normal Retirement Date at
the same rate as was contributed on behalf of Executive in
Executive's last full year of employment prior to his death.
SECTION II
PRE RETIREMENT AND POST RETIREMENT DEATH BENEFITS
2.1 DEATH PRIOR TO TERMINATION OF EMPLOYMENT. If Executive dies
prior to termination of employment with the Bank or after termination of
employment with the Bank but prior to the payment of any portion of the
Supplemental Retirement Income Benefit, Executive's Beneficiary shall be
entitled to the Survivor's Benefit. Such benefit shall be paid monthly in two
hundred forty
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(240) equal installments. The first installment shall begin within thirty (30)
days after the Bank is notified of the date of death of Executive.
2.2 DEATH SUBSEQUENT TO RETIREMENT. In the event of the Executive's
death while receiving monthly benefits under this Agreement, but prior to
receiving two hundred forty (240) monthly payments, the unpaid balance of such
monthly payments shall continue to be paid monthly to Executive's Beneficiary.
SECTION III
SUPPLEMENTAL RETIREMENT INCOME BENEFIT AND OTHER BENEFITS
3.1 NORMAL RETIREMENT BENEFIT. Upon Executive's termination of
employment due to retirement coincident with or following his Normal Retirement
Date, the Bank shall commence payments of the Supplemental Retirement Income
Benefit. Such payments shall commence the first day of the month next following
Executive's termination of employment, provided, however, if the Executive is a
Specified Employee and the termination is deemed to be a Separation from
Service, then if the following is required by Code Section 409A, such payments
shall commence the first day of the seventh month next following Executive's
Separation from Service, and shall be payable monthly thereafter for two hundred
forty (240) months or Executive's life, whichever is longer.
3.2 DISABILITY. If Executive becomes Permanently and Totally
Disabled prior to reaching his Normal Retirement Date, while covered by the
provisions of this Agreement, Executive shall be entitled to a Supplemental
Disability Benefit commencing within thirty (30) days after a determination by
the Board of Directors that the Executive is Permanently and Totally Disabled.
The Supplemental Disability Benefit shall be equal to the Supplemental
Retirement Income Benefit ("SRIB") reduced by three percent (3%) for each twelve
month period (or part thereof) that such Disability Benefits commence prior to
Executive's 65th birthday, as set forth below:
Period Commencing
at Age % OF SRIB
------ ---------
58 79%
59 82%
60 85%
61 88%
62 91%
63 94%
64 97%
For these purposes, the Supplemental Retirement Income Benefit shall be equal to
the applicable percentage of the amount payable to Executive as if Executive had
worked until his Normal Retirement Date and commenced receiving the Supplemental
Retirement Income Benefit at that time. For purposes of these calculations,
Executive's Annual Compensation shall be deemed to increase at the rate of five
percent (5%) per year to age 65 at the customary time of such normal annual
increase. In addition, for purposes of this calculation, the Bank's
contributions to (i) the Money Purchase Pension Plan, (ii) the 401(k) Plan, and
(iii) the employer's portion of Social
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Security shall be deemed to continue at the same rate until Executive's Normal
Retirement Date as was contributed on behalf of Executive in Executive's last
full year of employment prior to his termination of service due to becoming
Permanently and Totally Disabled.
In the event Executive dies at any time after termination of employment
due to disability but prior to commencement or completion of two hundred forty
(240) monthly payments, the Bank shall pay to Executive's Beneficiary a
continuation of the monthly installments for the remainder of the two hundred
forty (240) month period.
3.3 CHANGE IN CONTROL BENEFIT. If a Change of Control occurs and
results in the termination of Executive's employment with the Bank prior to the
Executive reaching his 65th birthday, Executive shall be entitled to a Change in
Control benefit (the "Change in Control Benefit") commencing within thirty (30)
days after the effective date of such Change in Control provided, however, if
the Executive is a Specified Employee and the termination is deemed to be a
Separation from Service, then if the following is required by Code Section 409A,
such payments shall commence the first day of the seventh month next following
Executive's Separation from Service, and shall be payable monthly thereafter for
two hundred forty (240) months or Executive's life, whichever is longer. The
Change in Control Benefit shall be equal to the Supplemental Retirement Income
Benefit ("SRIB") reduced by three percent (3%) for each twelve month period (or
part thereof) that such Change in Control Benefit commences prior to Executive's
65th birthday, as set forth in the example below:
Period Commencing
at Age % OF SRIB
------ ---------
58 79%
59 82%
60 85%
61 88%
62 91%
63 94%
64 97%
For these purposes, the Supplemental Retirement Income Benefit shall be equal to
the applicable percentage of the amount payable to Executive as if Executive had
worked until his 65th birthday and commenced receiving the Supplemental
Retirement Income Benefit at that time. For purposes of these calculations,
Executive's Annual Compensation shall be deemed to increase at the rate of five
percent (5%) per year to age 65 at the customary time of such normal annual
increase. In addition, for purposes of this calculation, the Bank's
contributions to (i) the Money Purchase Pension Plan, (ii) the 401(k) Plan, and
(iii) the employer's portion of Social Security shall be deemed to continue at
the same rate until Executive's 65th birthday as was contributed on behalf of
Executive in Executive's last full year of employment prior to the effective
date of the termination of Executive's employment with the Bank resulting from
the Change in Control.
In the event Executive dies at any time after the termination of his
employment with the Bank resulting from the Change in Control, but prior to
commencement or completion of two hundred forty (240) monthly payments, the Bank
shall pay to Executive's Beneficiary a continuation of the monthly installments
for the remainder of the two hundred forty (240) month period.
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3.4 TERMINATION OF EMPLOYMENT BEFORE NORMAL RETIREMENT AGE. In the
event of Executive's termination of employment prior to Normal Retirement Age
for reasons other than death, Disability or a Change in Control, Executive shall
be entitled to the amount accrued for Executive on the books and records of the
Bank ("Accrued Benefit"). Such Accrued Benefit shall be annuitized using the
Interest Factor and paid in installments over a twenty (20) year period.
3.5 CHANGE OF ELECTION TO DELAY PAYMENT. In the event Executive
desires to delay the payment commencement date of his Supplemental Retirement
Income Benefit, Executive may file an election with the Bank to delay the
payment commencement date, PROVIDED THAT (i) the election must be filed at least
12 months prior to its becoming effective, (ii) if Executive becomes entitled to
a payment during such 12 month period, the payment election form shall be
ignored and distribution of the Supplemental Retirement Income Benefit shall
commence under the Agreement in accordance with its original payment schedule,
and (iii) the election must delay the first payment with respect to such
election for a period of not less than 5 years from the date the payment would
otherwise have been made.
SECTION IV
EXECUTIVE'S RIGHT TO ASSETS
The rights of Executive, any Beneficiary of Executive, or any other
person claiming through Executive under this Agreement, shall be solely those of
an unsecured general creditor of the Bank. Executive, the Beneficiary of
Executive, or any other person claiming through Executive, shall only have the
right to receive from the Bank those payments as specified under this Agreement.
Executive agrees that he, his Beneficiary, or any other person claiming through
him shall have no rights or interests whatsoever in any asset of the Bank,
including any insurance policies or contracts which the Bank may possess or
obtain to informally fund this Agreement. Any asset used or acquired by the Bank
in connection with the liabilities it has assumed under this Agreement, except
as expressly provided, shall not be deemed to be held under any trust for the
benefit of Executive or his Beneficiaries, nor shall it be considered security
for the performance of the obligations of the Bank. It shall be, and remain, a
general, unpledged, and unrestricted asset of the Bank.
SECTION V
RESTRICTIONS UPON FUNDING
The Bank shall have no obligation to set aside, earmark or entrust any
fund or money with which to pay its obligations under this Agreement. Executive,
his Beneficiaries or any successor in interest to him shall be and remain simply
a general creditor of the Bank in the same manner as any other creditor having a
general claim for matured and unpaid compensation. The Bank reserves the
absolute right, at its sole discretion, to either fund the obligations
undertaken by this Agreement or to refrain from funding the same and to
determine the extent, nature, and method of such informal funding. Should the
Bank elect to fund this Agreement, in whole or in part, through the purchase of
life insurance, disability policies or annuities, the Bank reserves the absolute
right, in its sole discretion, to terminate such funding at any time, in whole
or in part. At no time shall Executive be deemed to have any lien nor right,
title or interest in or to any specific funding investment or to any
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assets of the Bank. If the Bank elects to invest in a life insurance, disability
or annuity policy upon the life of Executive, then Executive shall assist the
Bank by freely submitting to a physical examination and supplying such
additional information necessary to obtain such insurance or annuities.
SECTION VI
ALIENABILITY AND ASSIGNMENT PROHIBITION
Neither Executive nor any Beneficiary under this Agreement shall have
any power or right to transfer, assign, anticipate, hypothecate, mortgage,
commute, modify or otherwise encumber in advance any of the benefits payable
hereunder, nor shall any of said benefits be subject to seizure for the payment
of any debts, judgments, alimony or separate maintenance owed by Executive or
his Beneficiary, nor be transferable by operation of law in the event of
bankruptcy, insolvency or otherwise. In the event Executive or any Beneficiary
attempts assignment, communication, hypothecation, transfer or disposal of the
benefits hereunder, the Bank's liabilities shall forthwith cease and terminate.
SECTION VII
TERMINATION OF EMPLOYMENT FOR CAUSE
Should Executive be terminated for Cause, all benefits under this
Agreement shall be forfeited and this Agreement shall become null and void.
SECTION VIII
ACT PROVISIONS
8.1. NAMED FIDUCIARY AND ADMINISTRATOR. The Bank shall be the named
fiduciary and administrator of this Agreement. As administrator, the Bank shall
be responsible for the management, control and administration of the Agreement
as established herein. The administrator may delegate to others certain aspects
of the management and operational responsibilities of the Agreement, including
the employment of advisors and the delegation of ministerial duties to qualified
individuals.
8.2. CLAIMS PROCEDURE AND ARBITRATION. In the event that benefits
under this Agreement are not paid to Executive (or to his Beneficiary in the
case of Executive's death) and such claimants feel they are entitled to receive
such benefits, then a written claim must be made to the administrator named
above within thirty (30) days from the date payments are refused. The
administrator and its Board of Directors shall review the written claim and, if
the claim is denied, in whole or in part, they shall provide in writing within
thirty (30) days of receipt of such claim their specific reasons for such
denial, reference to the provisions of this Agreement upon which the denial is
based and any additional material or information necessary to perfect the claim.
Such written notice shall further indicate the additional steps to be taken by
claimants if a further review of the claim denial is desired.
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8.3. If claimants desire a second review, they shall notify the
administrator in writing within thirty (30) days of the first claim denial.
Claimants may review the Agreement or any documents relating thereto and submit
any issues, in writing, and comments they may feel appropriate. In its sole
discretion, the administrator shall then review the second claim and provide a
written decision within thirty (30) days of receipt of such claim. This decision
shall likewise state the specific reasons for the decision and shall include
reference to specific provisions of the Agreement upon which the decision is
based.
8.4. If claimants continue to dispute the benefit denial based upon
completed performance of the Agreement or the meaning and effect of the terms
and conditions thereof, then claimants may submit the dispute to mediation,
administered by the American Arbitration Association ("AAA") (or a mediator
selected by the parties) in accordance with the AAA's Commercial Mediation
Rules. If mediation is not successful in resolving the dispute, it shall be
settled by arbitration administered by the AAA under its Commercial Arbitration
Rules, and judgment on the award rendered by the arbitrator(s) may be entered in
any court having jurisdiction thereof. If it is finally determined that
Executive (or his Beneficiary) is entitled to the benefits set forth under this
Plan, then all amounts that Executive (or his Beneficiary) would have received
up to the time of such final determination shall be paid to Executive (or his
Beneficiary) with interest (calculated using the Interest Factor) within thirty
(30) days after such final determination.
8.5. Where a dispute arises as to the Bank's discharge of Executive
for Cause, such dispute shall likewise be submitted to arbitration as above
described and the parties hereto agree to be bound by the decision thereunder.
8.6. All reasonable legal fees paid or incurred by Executive pursuant
to any dispute or questions of interpretation relating to this Agreement shall
be paid or reimbursed by the Bank, provided that the dispute or interpretation
has been settled by executive and the Bank or resolved in Executive's favor.
SECTION IX
MISCELLANEOUS
9.1 NO EFFECT ON EMPLOYMENT RIGHTS. Nothing contained herein shall
confer upon Executive the right to be retained in the service of the Bank nor
limit the right of the Bank to discharge or otherwise deal with Executive
without regard to the existence of this Agreement.
9.2 DISCLOSURE. Executive shall receive a copy of his Agreement and
the administrator will make available, upon request, a copy of any rules and
regulations that govern this Agreement.
9.3 GOVERNING LAW. The Agreement is established under, and will be
construed according to, the laws of the State of New York, to the extent that
such laws are not preempted by the Act and valid regulations published
thereunder.
9.4 SEVERABILITY. In the event that any of the provisions of this
Agreement or portion thereof, are held to be inoperative or invalid by any court
of competent jurisdiction, then: (1) insofar as is reasonable, effect will be
given to the intent manifested in the provisions held invalid or
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inoperative, and (2) the validity and enforceability of the remaining provisions
will not be affected thereby.
9.5 INCAPACITY OF RECIPIENT. In the event Executive is declared
incompetent and a conservator or other person legally charged with the care of
his person or of his estate is appointed, any benefits under the Agreement to
which such Executive is entitled shall be paid to such conservator or other
person legally charged with the care of his person or his Estate. Except as
provided above in this paragraph, when the Bank's Board of Directors in its sole
discretion, determines that an Executive is unable to manage his financial
affairs, the Board may direct the Bank to make distributions to any person for
the benefit of such Executive.
9.6 UNCLAIMED BENEFIT. Executive shall keep the Bank informed of his
current address and the current address of his Beneficiaries. The Bank shall not
be obligated to search for the whereabouts of any person. If the location of
Executive is not made known to the Bank within three years after the date on
which any payment of Executive's Supplemental Retirement Income Benefit may be
made, payment may be made as though Executive had died at the end of the
three-year period. If, within one additional year after such three-year period
has elapsed, or, within three years after the actual death of Executive, the
Bank is unable to locate any Beneficiary of Executive, then the Bank may fully
discharge its obligation by payment to the Estate.
9.7 LIMITATIONS ON LIABILITY. Notwithstanding any of the preceding
provisions of the Agreement, neither the Bank, nor any individual acting as an
employee or agent of the Bank or as a member of the Board of Directors shall be
liable to Executive, former Executive, or any other person for any claim, loss,
liability or expense incurred in connection with the Agreement.
9.8 GENDER. Whenever, in this Agreement, words are used in the
masculine or neuter gender, they shall be read and construed as in the
masculine, feminine or neuter gender, whenever they should so apply.
9.9 AFFECT ON OTHER CORPORATE BENEFIT AGREEMENTS. Nothing contained
in this Agreement shall affect the right of Executive to participate in, or be
covered by, any qualified or non-qualified pension, profit sharing, group, bonus
or other supplemental compensation or fringe benefit agreement constituting a
part of the Bank's existing or future compensation structure.
9.10 HEADINGS. Headings and sub-headings in this Agreement are
inserted for reference and convenience only and shall not be deemed a part of
this Agreement.
9.11 ESTABLISHMENT OF RABBI TRUST. The Bank may, but is not obligated
to, establish a rabbi trust into which the Bank may contribute assets which
shall be held therein, subject to the claims of the Bank's creditors in the
event of the Bank's "Insolvency" as defined in the agreement which establishes
such rabbi trust, until the contributed assets are paid to Executives and their
Beneficiaries in such manner and at such times as specified in this Agreement.
In the event a rabbi trust is established, it is the intention of the Bank to
make contributions to the rabbi trust to provide the Bank with a source of funds
to assist it in meeting the liabilities of this Agreement. The rabbi trust and
any assets held therein shall conform to the terms of the rabbi trust agreement
which has been established in conjunction with this Agreement. To the extent the
language in this Agreement is modified by the language in the rabbi trust
agreement, the rabbi trust agreement shall supersede
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this Agreement. Any contributions to the rabbi trust shall be made during each
plan year in accordance with the rabbi trust agreement. The amount of such
contribution(s) shall be equal to the full present value of all benefit accruals
under this Agreement, if any, less: (i) previous contributions made on behalf of
Executive to the rabbi trust, and (ii) earnings to date on all such previous
contributions.
9.12 TAX WITHHOLDING. The Bank may withhold from any benefit payable
under this Agreement all federal, state, city, or other taxes as shall be
required pursuant to any law or governmental regulation then in effect.
SECTION X
NON-COMPETITION AFTER NORMAL RETIREMENT
10.1 NON-COMPETE CLAUSE. Except as stated in the second paragraph of
this subsection, Executive expressly agrees that, as consideration for the
agreements of the Bank contained herein and as a condition to the performance by
the Bank of its obligations hereunder, for eighteen (18) months following
termination of Executive's employment, other than a termination of employment
following a Change in Control, Executive will not, without the prior written
consent of the Bank, engage in or become interested, directly or indirectly, as
a sole proprietor, as a partner in a partnership, or as a substantial
shareholder in a corporation, nor become associated with, in the capacity of an
employee, director, officer, principal, agent, trustee or in any other capacity
whatsoever, any enterprise conducted in any city, town or county in which the
Bank maintains an office at the time of Executive's termination of employment,
which enterprise is, or may deemed to be, competitive with any business carried
on by the Bank as of the date of the termination of Executive's employment or
his retirement.
10.2 TERMINATION OF EMPLOYMENT FOLLOWING A CHANGE IN CONTROL. In the
event of Executive's termination of employment following a Change in Control,
Executive shall be entitled to the benefit hereunder whether or not he enters
into an arrangement that is deemed to be competitive with the Bank.
10.3 BREACH. In the event of any breach by Executive of the
agreements and covenants contained herein, the Board of Directors of the Bank
shall direct that any unpaid balance of any payments to Executive under this
Agreement be suspended, and shall thereupon notify Executive of such
suspensions, in writing. Thereupon, if the Board of Directors of the Bank shall
determine that said breach by Executive has continued for a period of six (6)
months following notification of such suspension, all rights of Executive and
his Beneficiaries under this Agreement, including rights to further payments
hereunder, shall thereupon terminate. If, however, Executive cures such breach
in all material respects within ninety (90) days of the termination of
Executive's (and his Beneficiaries') rights under the Agreement, or if it is
later determined by the Bank's Board of Directors that no breach had, in fact,
occurred, then all of Executive's (and his Beneficiaries') rights under the
Agreement will be immediately restored, and benefit payments, if they had begun
prior to the breach (or the action erroneously determined to be a breach), shall
recommence at the next ordinarily scheduled payment date. The first benefit
payment after recommencement shall be in an amount sufficient to place the
Executive in the position, with respect to the payment of his benefits under the
Agreement, in which he would have been but for
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the suspension of his rights due to the Board's determination that Executive had
breached the Agreement.
SECTION XI
AMENDMENT, REVOCATION OR TERMINATION
This Agreement shall not be amended, modified, or revoked at any time,
in whole or part, without the mutual written consent of Executive and the Bank,
and such mutual consent shall be required even if Executive is no longer
employed by the Bank. In the event that any of the provisions of this Agreement
or portion hereof, are held to be inoperative or invalid by any court of
competent jurisdiction, or in the event that any legislation, regulation, or
rule adopted by any governmental body having jurisdiction over the Bank,
including, but not limited to the Office of Thrift Supervision and the Internal
Revenue Service, would be retroactively applied to invalidate this Agreement or
any provision hereof or cause the benefits hereunder to be taxable, then: (1)
insofar as is reasonable, effect will be given to the intent manifested in the
provisions held invalid or inoperative, and (2) the validity and enforceability
of the remaining provisions will not be affected thereby. In the event that the
intent of any provision shall need to be construed in a manner to avoid
taxability, such construction shall be made by the Bank, as administrator of the
Agreement, in a manner that would manifest to the maximum extent possible the
original meaning of such provisions. Notwithstanding anything herein, this
Agreement may be terminated following a Change in Control in the sole discretion
of the Board of Directors, provided that following such termination, the accrued
benefit is distributed to the Executive within twelve (12) months of such
termination.
SECTION XII
COMPLIANCE WITH CODE SECTION 409A
The Plan is intended to comply with Code Section 409A and any regulatory
and other guidance issued thereunder. At the effective date of the Plan,
additional guidance was being issued by the U.S. Treasury Department. Any
provisions that are inconsistent with such guidance shall, to the extent
possible, be construed to be consistent therewith. In the event that a provision
cannot be construed to be consistent with guidance issued after the date hereof,
such provision(s) will be null and void from the effective date of such
guidance.
SECTION XIII
EXECUTION
13.1 This Agreement sets forth the entire understanding of the
parties hereto with respect to the transactions contemplated hereby, and any
previous agreements or understandings between the parties hereto regarding the
subject matter hereof are merged into and superseded by this Agreement.
13.2 This Agreement shall be executed in triplicate, each copy of
which, when so executed and delivered, shall be an original, but all three
copies shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the day and date first above written.
EXECUTIVE
Dated: May 1, 2005 /s/ Xxxxxxx X. Xxxxxx
-------------------------- ----------------------------------------
Xxxxxxx X. Xxxxxx
BROOKLYN FEDERAL SAVINGS BANK
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Title:Chairman
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SCHEDULE A
ACTUARIAL ASSUMPTIONS
Interest Factor: 6%
Actuarial Table: 1983 Individual Annuity Mortality
EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
BENEFICIARY DESIGNATION
Executive, XXXXXXX X. XXXXXX, under the terms of a certain Executive
Supplemental Retirement Income Agreement by and between him and BROOKLYN FEDERAL
SAVINGS BANK, Brooklyn, New York, dated ___________ 200__, hereby designates the
following Beneficiary to receive any guaranteed payments or death benefits under
such Agreement, following his death:
PRIMARY BENEFICIARY:
-----------------------------------------
-----------------------------------------
SECONDARY BENEFICIARY:
-----------------------------------------
-----------------------------------------
This Beneficiary Designation hereby revokes any prior Beneficiary
Designation which may have been in effect.
This Beneficiary Designation is revocable by Executive at any time for
any reason. To the extent Executive desires to change the individual(s)
designated as beneficiary(ies) herein, Executive shall have the right to execute
a new Beneficiary Designation that will effectively revoke this Beneficiary
Designation.
DATE: __________________, 20___
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(WITNESS) (EXECUTIVE - Print Name)
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(WITNESS) (EXECUTIVE - Signature)
