EXHIBIT 10.9
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as
of the 1st day of May, 1997, by and between Goshen Savings Bank, a mutual
savings bank organized and operating under the laws of the United States and
having its executive office at 0 Xxxxx Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000
(the "Bank"), and Xxxxx X. Xxxx, residing at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxx 00000.
WHEREAS, Xx. Xxxx currently serves the Bank as Senior Vice
President, Assistant Treasurer and Head Teller; and
WHEREAS, in order to secure Xx. Xxxx'x continued services for the
period thereof, the Board of Directors of the Bank (the "Board") has approved
and authorized the execution of this Agreement; and
Whereas, Xx. Xxxx is willing to continue to make her
services available to the Bank on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties hereto hereby agree as follows:
1. Employment. The Bank hereby continues the employment of
Xx. Xxxx as its Senior Vice President, Assistant Treasurer and
Head Teller, and Xx. Xxxx hereby accepts such continued
employment, during the period and upon the terms and conditions set forth in
this Agreement. During said period, in the event of a conversion of the Bank
from a mutual savings bank to a stock form of organization (the "Conversion"),
if elected, Xx. Xxxx also agrees to serve as the Senior Vice President and
Assistant Treasurer of the parent corporation of the Bank.
2. Employment Period. The terms and conditions of this Agreement shall
be and remain in effect during the period of employment established under this
section 2 (the "Employment Period").
(a) The Employment Period shall be for an initial term of three years
beginning on the date of this Agreement and ending on the third anniversary date
of this Agreement, plus such extensions, if any, as are approved by the Board
pursuant to section 2(b).
(b) Prior to the first anniversary of the date of this Agreement and
each anniversary date thereafter (each, an "Anniversary Date"), the Board shall
review the terms of this Agreement and Xx. Xxxx'x performance of services
hereunder and may, absent objection from Xx. Xxxx, approve a one year extension
of the Employment Period. In such event, the Employment Period shall be extended
to the third anniversary of the Anniversary Date immediately succeeding such
Board review (the "Extension Ending Anniversary Date").
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(c) If, prior to the date on which the Employment Period would end
pursuant to section 2(a) or (b) of this Agreement, a Change in Control (as
defined in section 13 of this Agreement) occurs and the Bank is not subject to
rules and regulations of the Office of Thrift Supervision (the "OTS"), then the
Employment Period shall be extended through and including the third anniversary
of the earliest date after the effective date of such Change in Control on which
either the Bank or Xx. Xxxx elects, by written notice pursuant to section 2(d)
of this Agreement to the non-electing party, to discontinue the Employment
Period; provided, however, that this section shall not apply in the event that,
prior to the Change in Control, Xx. Xxxx has provided written notice to the Bank
of her intent to discontinue the Employment Period.
(d) The Bank or Xx. Xxxx may, at any time by written notice given to
the other, elect to terminate this Agreement. Any such notice given by the Bank
shall be accompanied by a certified copy of a resolution, adopted by the
affirmative vote of a majority of the entire membership of the Board at a
meeting of the Board duly called and held, authorizing the giving of such
notice.
3. Duties. During the Employment Period, Xx. Xxxx shall:
(a) except to the extent allowed under section 7 of this Agreement,
devote her full business time and attention to the business and affairs of the
Bank, its parent and subsidiary
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corporations (if any), and use her best efforts to advance their
interests;
(b) serve as Senior Vice President, Assistant Treasurer and Head Teller
of the Bank, Senior Vice President and Assistant Treasurer of the Bank's parent
corporation and an officer of any of its subsidiaries if elected to serve in
such positions;
(c) have such functions, duties and responsibilities not inconsistent
with her title and office as may be assigned to her by or under the authority of
the Bank's Chief Executive Officer and/or the Board, in accordance with the
Organization Certificate, By-laws, applicable Statutes and Regulations, custom
and practice of the Bank as in effect on the date this Agreement is made. Xx.
Xxxx shall have such authority as is necessary or appropriate to carry out her
assigned duties. Xx. Xxxx shall report to and be subject to direction and
supervision by the Bank's Chief Executive Officer and the Board; and
4. Compensation; Salary and Bonus.
(a) In consideration for services rendered by Xx. Xxxx under this
Agreement, the Bank shall pay to Xx. Xxxx a salary at an annual rate equal to:
(i) during the twelve month period beginning on May 1, 1997 and ending
on April 30, 1998, no less than $68,874;
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(ii) during each twelve month period that begins after April 30, 1998,
such amount as the Board may, in its discretion, determine, but in no event less
than the rate in effect for the prior twelve month period;
(iii) for each twelve month period that begins on or after a Change in
Control, the product of Xx. Xxxx'x annual rate of salary in effect immediately
prior to such twelve-month period, multiplied by the greater of:
(A) the quotient of (1) the U.S. Department of Labor
Consumer Price Index for All Urban Consumers
(N.Y.-Northeastern N.J.) for October of the immediately
preceding calendar year, divided by (2) the U.S. Department of
Labor Consumer Price Index for All Urban Consumers
(N.Y.-Northeastern N.J.) for October of the second preceding
calendar year; and
(B) the quotient of (1) the average annual rate of
salary, determined as of the first day of such calendar year,
of the officers of the Bank (other than Xx. Xxxx) who are
assistant vice presidents or more senior officers, divided by
(2) the average annual rate of salary, determined as of the
first day of the immediately preceding calendar year, of the
officers of the Bank (other than Xx. Xxxx) who are assistant
vice presidents or more senior officers.
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(b) The salary payable under section 4(a) shall be paid in
approximately equal installments in accordance with the Bank's customary payroll
practices. Nothing in this section 4 shall be construed as prohibiting the
payment to Xx. Xxxx of a salary in excess of that prescribed under section 4(a)
or of a bonus of additional cash or non-cash compensation, to the extent that
such payment is duly authorized by or under the authority of the Board.
5. Employee Benefits Plans and Programs; Other Compensation. Except as
otherwise provided in this Agreement, Xx. Xxxx shall be treated as an employee
of the Bank and be entitled to participate in and receive benefits under the
Bank's Retirement Plan, group life and health (including hospitalization,
medical, major medical and dental) and disability insurance plans, and such
other employee benefit plans and programs, including but not limited to any
long-term or short-term incentive compensation plans or programs (whether or not
employee benefit plans or programs), as the Bank may maintain from time to time,
in accordance with the terms and conditions of such employee benefit plans and
programs and compensation plans and programs and with the Bank's customary
practices. Following a Change in Control, all such benefits to Xx. Xxxx shall be
continued on terms and conditions substantially identical to, and in no event
less favorable than, those in effect prior to the Change in Control. Nothing in
this Agreement will reduce benefits provided under the Bank's Employee Handbook,
Revised Edition January 1, 1997,
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notwithstanding any future reductions which might be made to the benefits
provided in such Employee Handbook.
6. Conversion Benefits. In the event of a Conversion, the Bank will
provide, or cause to be provided, to Xx. Xxxx in connection with such
Conversion, stock-based compensation and benefits, including, without
limitation, stock options, restricted stock awards, and participation in
tax-qualified stock bonus plans which, in the aggregate, are either (a) accepted
by Xx. Xxxx in writing as being satisfactory for purposes of this Agreement or
(b) in the written, good faith opinion of a nationally recognized executive
compensation consulting firm selected by the Bank and satisfactory to Xx. Xxxx,
whose agreement shall not be unreasonably withheld, are no less favorable than
the stock-based compensation and benefits usually and customarily provided to
similarly situated executives of similar financial institutions in connection
with similar transactions.
7. Board Memberships and Personal Activities. Xx. Xxxx may serve as a
member of the board of directors of such business, community and charitable
organizations as she may disclose to the Board from time to time, and she may
engage in personal business and investment activities for her own account;
provided, however, that such service and personal business and investment
activities shall not (a) materially interfere with the performance of her duties
under this Agreement, and (b) involve entities which
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either compete with the Bank or may reasonably be expected to negatively impact
on the Bank's standing and reputation in the community it serves.
8. Working Facilities and Expenses. Xx. Xxxx'x principal place of
employment shall be at the Bank's executive offices. The Bank shall provide Xx.
Xxxx, at such principal place of employment, with 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 Xx. Xxxx for her ordinary and necessary business
expenses, including, without limitation, fees for memberships in such clubs and
organizations as Xx. Xxxx and the Bank shall mutually agree are necessary and
appropriate for business purposes, and travel and entertainment expenses
incurred in connection with the performance of her duties under this Agreement
upon presentation to the Bank of itemized accounts of such expenses in such form
as the Bank may reasonably require. Xx. Xxxx shall be entitled to no less than
four (4) weeks of paid vacation during each year in the Employment Period.
9. Termination Giving Rise to Severance Benefits.
(a) The Bank shall provide to Xx. Xxxx the benefits and pay her the
amounts provided under section 9(b) of this Agreement in the event that Xx.
Xxxx'x employment with the Bank shall terminate during the Employment Period for
reasons other than:
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(i) a Termination for Cause (within the meaning of section
12(a) of this Agreement);
(ii) a voluntary resignation by Xx. Xxxx other than a Resignation for
Good Reason (within the meaning of section 12(b) of this Agreement);
(iii) a termination on account of Xx. Xxxx'x death; or
(iv) a termination after both of the following conditions exist: (A)
Xx. Xxxx has been absent from the full-time service of the Bank on account of
this Disability (as defined in section 11(c) of this Agreement) for at least six
consecutive months; and (B) Xx. Xxxx shall have failed to return to work in the
full-time service of the Bank within thirty days after written notice requesting
such return is given to Xx. Xxxx by the Bank.
(b) In the event that Xx. Xxxx'x employment with the Bank shall
terminate under circumstances described in section 9(a) of this Agreement, the
following benefits and amounts shall be paid or provided to Xx. Xxxx:
(i) her earned but unpaid salary as of the date of the termination of
her employment with the Bank, payable when due but in no event later than thirty
(30) days following her termination of employment with the Bank;
(ii) the benefits, if any, to which Xx. Xxxx and her family and
dependents are entitled as a former officer/employee, or
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family or dependents of a former officer/employee, under the employee benefit
plans and programs and compensation plans and programs maintained for the
benefit of the Bank's officers and employees, in accordance with the terms of
such plans and programs 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 her termination of employment or on the date of such Change in Control,
whichever results in more favorable benefits as determined by Xx. Xxxx, with
credit being given for additional years of service and age to the then current
Extension Ending Anniversary Date for purposes of determining eligibility and
benefits for any plan and program where age and service are relevant factors;
(iii) payment for all unused vacation days and floating holidays in the
year in which her employment is terminated, at her highest annual rate of salary
for such year;
(iv) continued group life, health (including hospitalization, medical,
major medical and dental) and disability insurance benefits in addition to that
provided pursuant to section 9(b)(ii) of this Agreement, to the extent necessary
after taking into account coverage provided by any subsequent employer, to
provide Xx. Xxxx and her family and dependents, until the then current Extension
Ending Anniversary Date, with coverage identical to and in any event no less
favorable than the coverage to which they would have been
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entitled under such 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 her termination of employment or during the one-year
period ending on the date of such Change in Control, whichever results in more
favorable benefits as determined by Xx. Xxxx) if she had continued working for
the Bank until the then current Extension Ending Anniversary Date at the highest
annual rate of compensation (assuming, if a Change in Control has occurred, that
the annual increases under section 4(a)(iii) would apply) under the Agreement;
(v) within thirty days following her termination of employment with the
Bank, a lump sum payment in an amount equal to the present value of the total
salary and bonuses that Xx. Xxxx would have earned if she had worked for the
Bank until the then current Extension Ending Anniversary Date at the highest
annual rate of salary (assuming, if a Change in Control has occurred, that the
annual increases under section 4(a)(iii) would apply) and the highest bonus
(calculated by applying the highest ratio of bonus to salary received by Xx.
Xxxx during the previous five years to the salary used for the calculation of
the lump sum payment under this section 9(b)(v)), with such present value to be
determined by using a discount rate of six percent per annum, compounded, in the
case of salary, with the frequency corresponding to the Bank's regular payroll
periods with respect to its officers, and, in the case of bonus, annually;
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(vi) within thirty days following this termination of employment with
the Bank, a lump sum payment in an amount equal to the excess, if any, of (A)
the present value of the benefits to which she would be entitled under any
defined benefit plans maintained by, or covering employees of, the Bank
(including any "excess benefit plan" within the meaning of section 3(36) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or other
special or supplemental plan) as in effect on the date of this termination, if
she had worked for the Bank until the then current Extension Ending Anniversary
Date at the highest annual rate of compensation (assuming, if a Change in
Control has occurred, that the annual increases under section 4(a)(iii) would
apply) under this Agreement and been fully vested in such plan or plans, 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 time remaining until the then current Extension Ending Anniversary Date
and by adding to the compensation recognized under such plans for the year in
which termination of employment occurs all amounts payable under sections
9(b)(i), (v) and (viii), over (B) the present value of the benefits to which she
is actually entitled under any such plans maintained by, or covering employees
of, the Bank as of the date of this termination with such present values to be
determined by using a discount rate of six percent per annum, compounded
monthly, and
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the mortality tables prescribed under section 72 of the Internal
Revenue Code of 1986 ("Code");
(vii) within thirty days following her termination of employment with
the Bank, a lump sum payment in an amount equal to the excess, if any, of (A)
the present value of the benefits attributable to the Bank's contribution to
which she would be entitled under any defined contribution plans maintained by,
or covering employees of, the Bank (including any "excess benefit plan" within
the meaning of section 3(36) of ERISA, or other special or supplemental plan) as
in effect on the date of her termination, if she had worked for the Bank until
the then current Extension Ending Anniversary Date at the highest annual rate of
compensation (assuming, if a Change in Control has occurred, that the annual
increases under section 4(c) would apply) under the Agreement, and made the
maximum amount of employee contributions, if any, required or permitted under
such plan or plans, and been eligible for the highest rate in matching
contributions under such plan or plans during the time remaining until the then
current Extension Ending Anniversary Date which is prior to Xx. Xxxx'x
termination of employment with the Bank, and been fully vested in such plan or
plans, over (B) the present value of the benefits attributable to the Bank's
contributions to which she is actually entitled under such plans as of the date
of her termination of employment with the Bank, with such present values to be
determined by using a discount rate of six percent
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per annum, compounded with the frequency corresponding to the
Bank's regular payroll periods with respect to its officers;
(viii) the payments that would have been made to Xx. Xxxx under any
incentive compensation plan maintained by, or covering employees of, the Bank
(other than bonus payments to which section 9(b)(v) of this Agreement is
applicable) if she had continued working for the Bank until the then current
Extension Ending Anniversary Date and had earned an incentive award in each
calendar year that ends during the time remaining until the then current
Extension Ending Anniversary Date in an amount equal to the product of (A) the
maximum percentage rate of compensation at which an award was ever available to
Xx. Xxxx under such incentive compensation plan, multiplied by (B) the
compensation that would have been paid to Xx. Xxxx during each calendar year at
the highest annual rate of compensation (assuming, if a Change in Control has
occurred, that the annual increases under section 4(a)(iii) would apply) under
the Agreement, such payments to be made at the same time and in the same manner
as payments are made to other officers of the Bank pursuant to the terms of such
incentive compensation plan; provided, however, that payments under this section
9(b)(viii) shall not be made to Xx. Xxxx for any year on account of which no
payments are made to any of the Bank's officers under any such incentive
compensation plan; and
(ix) the benefits to which Xx. Xxxx is entitled under the Bank's
Supplemental Executive Retirement Plan (or other excess
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benefits plan within the meaning of section 3(36) of ERISA or other special or
supplemental plan) shall be paid to her in a lump sum, with such lump sum to be
computed using the mortality tables under the Bank's tax-qualified pension plan
and a discount rate of six percent per annum. The payments specified in this
section 9(b)(ix) shall be made within thirty days after the date of Xx. Xxxx'x
election, and if the amount may be increased by a subsequent Change in Control,
any additional payment shall be made within thirty days of such Change in
Control.
(c) Xx. Xxxx shall not be required to mitigate the amount of any
payment provided for in this section 9 by seeking other employment or otherwise,
nor shall the amount of any payment or benefit provided for in this section 9 be
reduced by any compensation earned by Xx. Xxxx as the result of employment by
another employer, by retirement benefits, by offset against any amount claimed
to be owed by Xx. Xxxx to the Bank or the parent corporation of the Bank, or
otherwise except as specifically provided in this Agreement. Unless there is a
change of control, the parties hereto agree that the damages which may be
incurred by Xx. Xxxx as a consequence of termination of employment are not
capable of accurate measurement as of the date this Agreement is made and that
the benefits and payments provided for in this Agreement constitute a reasonable
estimate under the circumstances of all damages that would be sustained as a
consequence of any such termination of employment, other than damages arising
under or out of any stock option, restricted
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stock or other non-qualified stock acquisition or investment plan or program, it
being understood and agreed that this Agreement does not determine the
measurement of damages under any such plan or program in respect of any
termination of employment.
10. Termination Without Severance Benefits. In the event that Xx.
Xxxx'x employment with the Bank shall terminate during the Employment Period on
account of (a) Termination for Cause (within the meaning of section 12(a) of
this Agreement); or (b) voluntary resignation by Xx. Xxxx other than a
Resignation for Good Reason (within the meaning of section 12(b) of this
Agreement) then the Bank shall have no further obligations under this Agreement,
other than for the payment of the amounts and provision of the benefits under
sections 9(b)(i), (ii) and (iii) of this Agreement.
11. Death and Disability.
(a) If Xx. Xxxx'x employment is terminated by reason of Xx. Xxxx'x
death during the Employment Period, this Agreement shall terminate without
further obligations to Xx. Xxxx'x legal representatives under this Agreement,
other than for payment of the amounts and provision of the benefits under
sections 9(b) (i), (ii) and (iii) including the extension of health,
hospitalization and dental benefits to spouses, eligible dependents as well as
the survivor, providing the eligibility rules are met in accordance with the
Bank's Employee Handbook, Revised Edition January 1, 1997, page 7; provided,
however, that
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if Xx. Xxxx dies during the Employment Period, her designated beneficiary(ies)
shall receive a death benefit, payable through life insurance or otherwise,
which is the equivalent on a net after-tax basis of the death benefit payable
under a term life insurance policy, with a stated death benefit of two times Xx.
Xxxx'x then current salary under section 4 of this Agreement.
(b) If Xx. Xxxx'x employment is terminated by reason of Xx. Xxxx'x
Disability as defined in section 11(c) during the Employment Period, this
Agreement shall terminate without further obligations to Xx. Xxxx, other than
for payment of the amounts and provision of the benefits under sections 9(b)
(i), (ii) and (iii) including the extension of health, hospitalization and
dental benefits to spouses, eligible dependents as well as the survivor,
providing the eligibility rules are met in accordance with the Bank's Employee
Handbook, Revised Edition January 1, 1997, page 7; provided, however, that in
the event of Xx. Xxxx'x Disability during the Employment Period, the Bank will
pay to her a lump sum amount equal to two times her then current salary under
section 4 of this Agreement.
(c) For purposes of this Agreement, "Disability" shall be defined in
accordance with the terms of the Bank's long term disability policy.
(d) Payments under this section 11 shall be made within thirty days
after Xx. Xxxx'x death or disability.
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12. Definition of Termination for Cause and Resignation for Good
Reason.
(a) Xx. Xxxx'x termination of employment with the Bank shall be deemed
a "Termination for Cause" if such termination occurs 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 any provision of this Agreement, in
each case as measured against standards generally prevailing at the relevant
time in the savings and community banking industry; provided, however, that Xx.
Xxxx 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
Xx. Xxxx and a reasonable opportunity for Xx. Xxxx 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 Xx. Xxxx for cause.
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(b) Xx. Xxxx'x termination of employment with the Bank shall be deemed
a Resignation for Good Reason if such termination occurs following any one or
more of the following events:
(i) (A) the assignment to Xx. Xxxx of any duties inconsistent with Xx.
Xxxx'x status as Senior Vice President, Assistant Treasurer and Head Teller of
the Bank; or (B) a substantial adverse alteration in the nature or status of Xx.
Xxxx'x responsibilities from those in effect immediately prior to the
alteration; or (C) any Change in Control described in section 13 followed,
within one year, by notice pursuant to Section 2(d).
(ii) a reduction by the Bank in Xx. Xxxx'x salary as in effect on the
date this Agreement is made or as the same may have been increased from time to
time by the Board, unless such reduction was mandated at the initiation of any
regulatory authority having jurisdiction over the Bank;
(iii) the relocation of the Bank's executive offices to a location
outside of Orange County or the Bank's requiring Xx. Xxxx to be based anywhere
other than the Bank's executive offices except for required travel on the Bank's
business to an extent substantially consistent with Xx. Xxxx'x business travel
obligations at the date this Agreement is made;
(iv) the failure by the Bank, without Xx. Xxxx'x consent, to pay to Xx.
Xxxx, within seven days of the date when due, (A) any portion of her
compensation, or (B) any portion of an installment
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of deferred compensation under any deferred compensation program of the Bank,
which failure is not inadvertent and immaterial and which is not promptly cured
by the Bank after notice of such failure is given to the Bank by Xx. Xxxx;
(v) the failure by the Bank to continue in effect any compensation plan
in which Xx. Xxxx participates which is material to her total compensation,
including but not limited to the Bank's Retirement Plan or any substitute plans
unless an equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan, or the failure by the
Bank to continue her participation therein (or in such substitute or alternative
plan) on a basis not materially less favorable, both in terms of the amount of
benefits provided and the level of her participation relative to other
participants, unless such failure is the result of action mandated at the
initiation of any regulatory authority having jurisdiction over the Bank;
(vi) the failure by the Bank to continue to provide Xx. Xxxx with
benefits substantially similar to those enjoyed by Xx. Xxxx under the Bank's
Retirement Plan or under any of the Bank's life, health (including
hospitalization, medical, major medical and dental), and disability insurance
benefits, in which Xx. Xxxx is participating, or the taking of any action by the
Bank which would directly or indirectly materially reduce any of such benefits
or deprive Xx. Xxxx of the number of paid vacation days
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to which she is entitled, on the basis of years of service with the Bank, rank
or otherwise, in accordance with the Bank's normal vacation policy, unless such
failure is the result of action mandated at the initiation of any regulatory
authority having jurisdiction over the Bank;
(vii) the failure of the Bank to obtain a satisfactory agreement from
any successor to assume and agree to perform this Agreement, as contemplated in
section 15(a) of this Agreement;
(viii) any purported termination of employment by the Bank which is not
effected pursuant the provisions of section 12(a) regarding Termination for
Cause or on account of Disability;
(ix) a material breach of this Agreement by the Bank, which
the Bank fails to cure within thirty days following written
notice thereof from Xx. Xxxx;
(x) a requirement that Xx. Xxxx report to any person or group other
than the Bank's Chief Executive Officer, the Board or an Executive Committee
thereof.
13. Definition of Change in Control. For purposes of this Agreement, a
Change in Control of the Bank shall mean:
(a) the occurrence of any event upon which any "person" (as such term
is used in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "1934 Act")), other than (i) GSB Financial Corporation; (ii) a
trustee or other fiduciary holding securities under an employee benefit plan
maintained for
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the benefit of employees of the Bank; (iii) a corporation owned, directly or
indirectly, by the stockholders of the Bank in substantially the same
proportions as their ownership of stock of the Bank; or (iv) Xxxxxxxx X.
Xxxxxx, Xx. or Xx. Xxxx, or any group otherwise constituting a person in which
Xxxxxxxx X. Xxxxxx, Xx. or Xx. Xxxx is a member, becomes the "beneficial owner"
(as defined in Rule 13d-3 promulgated under the 1934 Act), directly or
indirectly, of securities issued by the Bank representing 25% or more of the
combined voting power of all of the Bank's then outstanding securities; or
(b) the occurrence of any event upon which the individuals who on the
date this Agreement is made are members of the Board, together with individuals
(other than any individual designated by a person who has entered into an
agreement with the Bank to effect a transaction described in section 13(a) or
13(c) of this Agreement) whose election by the Board or nomination for election
by the Bank's stockholders was approved by the affirmative vote of at least
two-thirds of the members of Board then in office who were either members of the
Board on the date this Agreement is made or whose nomination or election was
previously so approved cease for any reason to constitute a majority of the
members of the Board, but excluding, for this purpose, any such individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of directors of the Bank (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the 1934 Act);
or
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(c) the shareholders of the Bank approve either:
(i) a merger or consolidation of the Bank with any other
corporation, other than a merger or consolidation following which both of the
following conditions are satisfied:
(A) either (A) the members of the Board of the Bank
immediately prior to such merger or consolidation constitute
at least a majority of the members of the governing body of
the institution resulting from such merger or consolidation;
or (B) the shareholders of the Bank own securities of the
institution resulting from such merger or consolidation
representing eighty percent or more of the combined voting
power of all such securities then outstanding in substantially
the same proportions as their ownership of voting securities
of the Bank before such merger or consolidation; and
(B) the entity which results from such merger or
consolidation expressly agrees in writing to assume and
perform the Bank's obligations under this Agreement; or
(ii) a plan of complete liquidation of the Bank or an agreement for the
sale or disposition by the Bank of all or substantially all of its assets; and
(d) any event which would be described in sections 13(a), (b) or (c) if
the term "Parent Corporation of the Bank" were
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substituted for the term "Bank" herein. Such an event shall be deemed to be a
Change in Control under the relevant provision of sections 13(a), (b) or (c).
It is understood and agreed that more than one Change in Control may occur at
the same or different times during the Employment Period and that the provisions
of this Agreement shall apply with equal force and effect with respect to each
such Change in Control.
14. No Effect on Employee Benefit Plans or Programs. Except as
expressly provided in this Agreement, the termination of Xx. Xxxx'x employment
during the Employment Period or thereafter, whether by the Bank or by Xx. Xxxx,
shall have no effect on the rights and obligations of the parties hereto under
the Bank's Retirement Plan, group life, health (including hospitalization,
medical, major medical and dental), and disability insurance plans or such other
employee benefit plans or programs, or compensation plans or programs (whether
or not employee benefit plans or programs) and, following the conversion of the
Bank to stock form, any stock option and appreciation rights plan, employee
stock ownership plan and restricted stock plan, as may be maintained by, or
cover employees of, the Bank from time to time.
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15. Successors and Assigns.
(a) The Bank shall require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Bank to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Bank would be
required to perform it if no such succession had taken place. Failure of the
Bank to obtain such assumption and agreement prior to the effectiveness of any
such succession shall be deemed to constitute a material breach of the Bank's
obligations under this Agreement.
(b) This Agreement will inure to the benefit of and be binding upon Xx.
Xxxx, this legal representatives and testate or intestate distributees, and the
Bank, their respective 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 respective assets and
business of the Bank may be sold or otherwise transferred.
16. 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 writing and shall be deemed to
have been given at such time as it is delivered personally, or five days after
mailing if mailed, postage prepaid, by registered or certified mail, return
receipt
25
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 Xx. Xxxx:
Xx. Xxxxx X. Xxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx,, Xxx Xxxx 00000
If to the Bank:
Goshen Savings Bank
0 Xxxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: The President
With a copy to:
Xxxxxxx & Zelermyer, LLP
00 Xxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxx, Esq.
17. Enforcement Costs and Attorneys' Fees. The Bank shall pay to or on
behalf of Xx. Xxxx all reasonable costs, including legal fees, incurred by her
in connection with or arising out of her consultation with legal counsel or in
connection with or arising out of any action, suit or proceeding in which she
may be involved, as a result of her efforts, in good faith, to defend or enforce
the terms of this Agreement, provided that Xx. Xxxx shall have (a) proceeded in
accordance with section 24 of this Agreement and (b) 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; provided, further, that this section 17 shall
26
not obligate the Bank to pay costs and legal fees on behalf of Xx. Xxxx under
this Agreement in excess of reasonable attorney fees. For purposes of this
Agreement, any settlement agreement which provides for payment of any amounts in
settlement of the Bank's obligations hereunder shall be conclusive evidence of
Xx. Xxxx'x entitlement to payments under this section, and any such payments
shall be in addition to amounts payable pursuant to such settlement agreement,
unless such settlement agreement expressly provides otherwise.
18. 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.
19. 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 such right or power 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.
20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
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21. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York, without
reference to conflicts of law principles.
22. 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. Any reference to the term
"Board" shall mean the Board of Trustees of the Bank while the Bank is a mutual
savings bank and the Board of Directors of the Bank while the Bank is a stock
savings bank. Any reference to the term "Bank" shall mean the Bank in its mutual
form prior to the Conversion and in its stock form on and after the Conversion.
If the Bank does not convert to stock form, any reference to the Bank's being a
stock savings bank shall have no effect.
23. Entire Agreement; Modifications. This instrument contains the
entire agreement of the parties relating to the subject matter hereof, and
supersedes in its entirety any and all prior agreements, understandings or
representations relating to the subject matter hereof between the Bank and Xx.
Xxxx. No modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
24. Arbitration Clause. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three
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arbitrators in Middletown, New York, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrators' award in any court having jurisdiction; the expense of such
arbitration shall be borne by the Bank.
25. Required Regulatory Provisions. The following provisions are
included for the purposes 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 Xx. Xxxx under
section 9(b) hereof (exclusive of amounts described in section 9(b)(i) and (ix))
exceed three times Xx. Xxxx'x 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, Xx. Xxxx
shall have no right to receive compensation or other benefits for any period
after termination for cause.
(c) Notwithstanding anything herein contained to the contrary, any
payments to Xx. Xxxx 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
29
Insurance Act (the "FDI Act"), 12 U.S.C. Section 1828(k), and any regulations
promulgated hereunder.
(d) Notwithstanding anything herein contained to the contrary, if Xx.
Xxxx 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 Xx. Xxxx 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.
(e) Notwithstanding anything herein contained to the contrary, if Xx.
Xxxx 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 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 Xx. Xxxx shall not be affected.
(f) 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)),
30
all obligations of the Bank under this Agreement shall terminate as of the date
of default, but vested rights and obligations of the Bank and Xx. Xxxx shall not
be affected.
(g) Notwithstanding anything herein contained to the contrary, all
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 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.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be
executed and Xx. Xxxx has hereto set her hand, all as of the day
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and year first above written.
/s/ Xxxxx X. Xxxx
---------------------
XXXXX X. XXXX
WITNESS:
/s/ Xxxxx Xxxx
------------------
GOSHEN SAVINGS BANK
By /s/ Xxxxxxxx X. Xxxxxx, Xx.
---------------------------
ATTEST:
/s/ Xxxxx Xxxx
------------------
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