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EXHIBIT 10.16(A)
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, made and entered into as of the 31st day of
December, 1999 (the "Agreement"), by and between North Fork Bancorporation,
Inc., a Delaware corporation ("Company"), and Xxxxxx X. X'Xxxxx (the
"Executive").
RECITALS
WHEREAS, effective as of the date hereof, the Executive is resigning from
his position as an executive officer of the Company and North Fork Bank, a New
York trust company and wholly owned subsidiary of the Company (the "Bank"),
while continuing to serve as a Director and Vice Chairman of the Company and the
Bank; and
WHEREAS, the Company and the Executive seek to enter into an arrangement
pursuant to which the Executive, following his resignation, will make himself
available to provide to the Company and the Bank advice, consultation and
assistance on an as-needed basis with respect to certain matters pertaining to
the overall management and business of the Company and the Bank, as may be
requested from time to time by the President of the Company or its Board of
Directors; and
WHEREAS, the Executive is willing to make himself available for such
services pursuant to, and in accordance with, the terms of this Agreement; and
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WHEREAS, the parties intend that each will have certain other rights and
responsibilities with respect to such arrangement for the duration thereof, all
as more fully set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the Company and the Executive agree as follows:
1. SERVICES FURNISHED.
(a) During the Services Period (as defined in Section 2, below), the
Executive shall hold himself available to provide, and shall provide, such
advisory services relating to aspects of the business and operations of the
Company and the Bank as to which he gained specialized knowledge and experience
in the course of his employment with the Company, the Bank or North Side Savings
Bank prior to January 1, 2000 as the Company may reasonably request, including,
but not be limited to, rendering advice and assistance in connection with
litigation or threatened litigation meeting such description, as, for example,
by advising the Company exclusively on the prosecution, defense and settlement
of any such litigation, providing non-inculpatory testimony as a witness on
behalf of the Company or the Bank, and evaluating any settlement proposal or
proposals to terminate or cease prosecuting any case or to pursue or abandon any
appeals.
(b) The Executive may engage in business activities and may perform
services, as an employee or independent contractor, other than for the Company
(including but not limited to private employment with competitors of the Company
and employment in the public sector as an elected or appointed official), and
such business activities and/or the performance of such services shall not be
deemed to impair the Executive's availability to perform services for the
Company as contemplated by this Agreement so long as the Executive makes
himself available on a reasonable basis outside of normal business hours,
it being understood that
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the Company shall not have the right to require, and shall not require, the
delivery of advisory services in any manner that does, or would reasonably be
expected to, interfere with the Executive's ability to engage in such other
employment or self-employment described above on a substantially full-time basis
during normal business hours. If as a result of any such other employment or
self-employment, the Executive believes that he may be required, due to an
actual or potential conflict-of-interest, to discontinue rendering particular
advisory services hereunder for a period of time or to decline to render
particular advisory services requested of him hereunder, he shall so advise the
Company and may discontinue or decline the rendering of such services, but such
discontinuance or declination shall not terminate the Services Period or
adversely affect the Executive's rights under this Agreement.
(c) In the performance of any services required of him hereunder, the
Executive shall have exclusive control over the manner of performance of such
services, including, without limitation, the selection, supervision and
compensation of personnel, if any, in addition to the Executive to be involved
in the performance of such services, the selection methods, procedures,
strategies and equipment to be employed in the performance of such services, and
determination of the times, places and dates at which such services will be
performed, subject to the right of the Company, through its President or Board
of Directors, to establish limitations on the amount of reasonable expenses
incurred by the Executive that the Company will be obligated to reimburse, as
set forth in Section 3(b).
2. TERM. The term of this Agreement and the obligation of the Executive to
render services hereunder shall commence as of 12:01 a.m. on January 1, 2000,
and shall continue during the period (the "Services Period") extending from such
commencement until the expiration of this Agreement upon the normal expiration
date of this Agreement, which shall be
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December 31, 2005. This Agreement and the Services Period may be terminated
prior to such normal expiration date as follows: (i) by the Company, if it
obtains the express written consent of the Executive to such termination; (ii)
by the Company, if it provides for the full vesting, as of or prior to such
termination, of all restricted stock awards granted to the Executive prior to
January 1, 2000 under the Company's 1994 Key Employee Stock Plan and 1998 Stock
Compensation Plan (collectively, the "Plans") and listed on Schedule A attached
to this Agreement and made a part hereof (the "Outstanding Restricted Stock");
(iii) by the Company, by written notice of termination given to the Executive,
following (A) the Executive's material breach of his obligations under section 1
hereof and subsequent failure to substantially cure such breach within the
30-day period following his receipt of a written notice of breach from the
Company, (B) the Executive's material breach of his obligations under Section 5
hereof, if such breach shall have materially damaged the Company, or (C) the
Executive's conviction of, or plea of guilty or nolo contendere to, the
commission of a felony; or (iv) by the Executive, upon 30 days' notice to the
Company.
3. OFFICE SPACE; EXPENSES.
(a) Office Space. If and as may be required by the Executive in order
to perform services hereunder, the Company will provide the Executive with
suitable office space at its main offices at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx,
Xxx Xxxx, and with appropriate secretarial, clerical and other administrative
support and assistance.
(b) Expenses. Subject to such limitations as may be established from
time to time by the President of the Company or its Board of Directors, the
Company will reimburse the Executive for any reasonable expenses incurred by him
in connection with services rendered by him pursuant to this Agreement.
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4. COMPENSATION.
(a) The Company shall have no obligation to pay, and the Executive
shall have no right to claim, cash compensation (other than reimbursement of
expenses pursuant to section 3(b) of this Agreement) in consideration of his
remaining available to provide and his provision of the services contemplated by
this Agreement, it being the understanding of the parties that the sole
compensation (other than reimbursement of expenses) due to the Executive under
this Agreement shall be the potential vesting of the Executive's Outstanding
Restricted Stock and the continuing exercisability of all stock options granted
to the Executive under the Plans prior to January 1, 2000, and outstanding on
such date, as listed on Schedule A attached hereto ("Outstanding Stock
Options"), all of which were fully exercisable upon grant, in each case as
further described in Section 4(b).
(b) The Company hereby stipulates that: (i) upon commencement of the
Services Period under this Agreement, the Executive's "employment" with the
Company and its subsidiaries shall be deemed to have continued unbroken from
prior periods, and thereafter during the Services Period the Executive's
"employment" with the Company and its subsidiaries shall be deemed to continue
unbroken, in each case for purposes and only for purposes of the vesting of the
Outstanding Restricted Stock and the continuing exercisability of the
Outstanding Stock Options, and (ii) the Executive's withdrawal from availability
to provide services under this Agreement upon expiration of this Agreement on
the normal expiration date hereof (December 31, 2005) shall be deemed an
approved early retirement of the Executive which shall result in the full
vesting of all Outstanding Restricted Stock. Attached to this Agreement as
Exhibit B is a certified copy of a resolution duly adopted by the Compensation
Committee of the Company (i) approving such withdrawal as an early retirement
and a vesting event for all
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purposes of the Outstanding Restricted Stock and the agreements between the
Company and the Executive relating thereto, and (ii) exercising its powers of
interpretation to cause the Services Period to be deemed a part of the
Executive's period of continuous and unbroken employment for purposes of the
Outstanding Restricted Stock and Outstanding Stock Options and the agreements
between the Company and the Executive relating thereto (the "Awards
Agreements"). Execution of this Agreement shall not constitute an amendment,
modification or termination of any Stock Plan or any of the Awards Agreements.
Subject to the approvals and interpretations evidenced by the resolutions of the
Compensation Committee attached to this Agreement as Exhibit B, the Stock Plans
and the terms of all Awards Agreements shall, insofar as they apply to the
Executive, remain and continue in full force and effect. Except as provided
above or in any other agreement between the Company and the Executive or any
other plan of the Company covering the Executive, the Executive shall not be
deemed by virtue of this Agreement or the services to be performed by him
hereunder to be or to continue to be an "employee" of the Company and/or its
subsidiaries under any of the Company's other employee benefit plans, or to be
entitled to receive what an employee may be entitled to receive thereunder,
provided, however, that nothing in the foregoing clause will limit the right of
the Executive to receive or to continue to receive benefits payable or accruing
to him under some or all of such other employee benefit plans of the Company as
a former qualifying active employee of the Company and/or its subsidiaries
thereunder.
(c) Nothing in Sections 4(a) or 4(b) above shall imply or suggest that
early termination of this Agreement pursuant to Sections 2(a)(i), (iii) or (iv)
will constitute in and of itself an approved early retirement of the Executive
within the meaning of any Award Agreement or will result in and of itself in the
vesting of any Outstanding Restricted Stock.
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5. Confidentiality. Except to the extent otherwise authorized by the
Company, the Executive agrees to keep confidential all information coming into
his possession in the course of his employment with the Company or provision of
services under this Agreement that is not otherwise in the public domain and
that belongs or relates to or emanates from the Company or its subsidiaries.
Nothing in this Agreement, however, shall prohibit the Executive, with or
without the Company's authorization, from producing documents, providing
testimony or otherwise participating or cooperating in any judicial or
administration action, proceeding, investigation or other activity to the extent
he is advised in writing by legal counsel that such document production,
testimony, participation or cooperation is required under applicable law.
6. Indemnification. To the maximum extent permitted under applicable law,
during the Services Period and for a period of six (6) years thereafter, the
Company shall indemnify the Executive against and hold him harmless from any and
all claims, costs, liabilities, losses and exposures suffered or incurred by him
as a result of his rendering services hereunder, except for any such claims,
costs, liabilities, losses or exposures suffered or incurred by the Executive as
a result of intentional bad acts or omissions. The Company also shall indemnify
the Executive for all legal fees and expenses incurred by the Executive in
contesting or disputing any termination of this Agreement or in seeking to
obtain or enforce any right or benefit provided by this Agreement, unless such
fees and expenses are determined by a court of competent jurisdiction to have
been incurred as a result of the Executive's bad faith. The indemnification
provided herein shall be in addition to, and not in lieu of, any other
indemnification provided by the Company or its subsidiaries to the Executive
under any other contract or agreement or under any bylaw or charter provision.
The provisions of this section 6 shall be in addition to, and not
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in substitution for, any rights which the Executive may now have or may in the
future acquire to coverage under policies of errors and omission insurance
obtained by the Company or any of its subsidiaries relating to services provided
by him as any officer, employer or director of any of them or services
(including service as a fiduciary) provided by him to others at the request of
the Company or any of its subsidiaries.
7. Entire Agreement; Amendment; Waiver. This Agreement cancels and
supersedes all previous agreements or understandings between the parties
relating to the subject matter hereof, and embodies the entire agreement and
understanding of the parties with respect to the subject matter hereof, and
shall not be amended, modified or supplemented in any respect except by a
subsequent written instrument entered into by the parties. The performance of or
compliance with any covenant given herein or the satisfaction of any condition
to the obligations of either party hereunder may be waived by the party to whom
such covenant is given or whom such condition is intended to benefit, except to
the extent any such condition is required by law; provided, however, that, no
waiver of any provision of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof nor shall any such waiver constitute a
continuing waiver.
8. Successors; Binding Agreement. This Agreement shall be binding upon and
inure to the benefit of the Executive and his heirs and representatives and the
Company and its respective successors and assigns.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute
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one agreement which is binding upon all the parties hereto, notwithstanding that
all parties are not signatories to the same counterpart.
10. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the other
provisions of this Agreement, which shall remain in full force and effect.
11. Governing Law. This Agreement shall be governed in all respects,
including as to validity, interpretation and effect, by the internal laws of the
State of New York, without giving effect to the conflict of laws rules thereof.
Notwithstanding anything herein contained to the contrary, any payments to the
Executive by the Company, 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, 12 U.S.C.ss.1828(k), and any regulations
promulgated thereunder.
12. Notices. Any communication required or permitted to be given to a party
under this Agreement, including any notice, direction, designation, consent,
instruction, objection or waiver, shall be in writing and shall be deemed to
have been given at such time as it is delivered personally, or five (5) calendar
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 either party may by written notice specify to the other
party:
If to the Executive:
Xxxxxx X. X'Xxxxx
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copy to
Xxxxxxx Xxxxxxxx & Wood
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. Xxxxxx Xxxxxx, Esq.
If to the Company:
North Fork Bancorporation, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
13. Survival. Any provisions of this Agreement which, by its express terms
or in practical effect, contemplates performance after the expiration of the
Services Period or termination of this Agreement shall survive the expiration of
the Services Period or termination of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused this
Agreement to be executed by their duly authorized representatives, as of the day
and year first above written.
NORTH FORK BANCORPORATION, INC.
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Executive Vice President and
Chief Financial Officer
"THE EXECUTIVE"
/s/ Xxxxxx X. X'Xxxxx
Xxxxxx X. X'Xxxxx
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Exhibit A
Outstanding Awards
as of December 31, 1999
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Restricted Stock
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No. of Shares(1) Date of Grant
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37,500 12/09/97
25,000 12/16/98
30,000 12/13/99
Stock Options(2)
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No. of Shares(1) Date of Grant Exercise Price(1)
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30,000 12/09/97 21.15
9,774 04/23/98 26.88
48,809 04/23/98 26.88
20,000 12/16/98 20.47
25,000 12/13/99 18.1563
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(1) Adjusted to reflect stock dividends and stock splits post grant date.
(2) All stock options granted to the Executive were fully exercisable by him
immediately upon grant.
