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AGREEMENT
AGREEMENT dated as of October 12, 2006, between NEW YORK COMMERCIAL
BANK, a New York State-chartered commercial bank (the "Bank") and XXXXXX X.
XXXXXXXXX ("Executive").
WHEREAS, Executive currently serves as a member of the Board of
Directors of the Bank; and
WHEREAS, Executive has assumed additional responsibilities relating to
the Bank's operations; and
WHEREAS, the Bank and Executive desire to set forth the terms and
conditions of his continued service with the Bank.
NOW, THEREFORE, in consideration of the foregoing and the mutual
commitments contained in this Agreement, the parties hereto agree as follows:
1. TERM
The term of this Agreement shall be for the period beginning October 12,
2006 and ending on October 11, 2007. The parties may extend this Agreement by
mutual agreement at any time prior to the expiration of the term.
2. POSITION
During the term of the Agreement, Executive shall serve as President of
the Atlantic Bank division of the Bank, reporting to, and subject to the
direction of, the Chief Executive Officer of the Bank.
3. CONFIDENTIAL INFORMATION
Executive agrees that he shall keep secret and confidential all
business-related information about the Bank, including, without limitation,
information about business contacts, transactions, contracts, intellectual
property, finances, personnel, products and pricing, customers, prospective
customers or corporate affairs of which Executive may have become aware, whether
or not relating to or arising out of Executive's specific duties ("Confidential
Information"). Executive shall not disclose or make known any of such
Confidential Information or anything relating thereto to any person, firm or
corporation except to officers, directors, employees, agents and advisors of the
Bank and such other persons or entities as may be authorized by the Bank or to
the extent required by law.
4. NONCOMPETITION; NONSOLICITATION
(a) Executive agrees that, during the term of this Agreement,
Executive will:
(i) not, directly or indirectly (whether as principal,
agent, independent contractor, employee or otherwise), own,
manage, operate, join, control or otherwise carry on,
participate in the ownership, management, operation or control
of, or be engaged in or concerned with, any business
competitive with that of the Bank or its affiliates (a
"Competing Business"), provided that Executive shall not be
prohibited from owning less than 5% of any publicly traded
corporation, whether or not such corporation is in competition
with that Bank or its affiliates;
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(ii) inform any person which seeks to engage the
services of Executive that Executive is bound by this Section
4 and the other terms of this Agreement;
(iii) not solicit or induce or attempt to solicit or
induce, directly or indirectly, any employee of the Bank or
its affiliates, whether or not such person would commit a
breach of any employment agreement by reason of leaving
service, to terminate such employee's employment relationship
with the Bank or its affiliates in order to enter into any
such relationship with him or any person in competition with
the business of the Bank or its affiliates; and
(iv) not, (x) solicit by mail, by telephone, by
personal meeting, or by any other means, either directly or
indirectly, any customer or any individual or entity
specifically identified as a prospective customer of the Bank
or its affiliates to transact any Competing Business or to
reduce or refrain from doing any business with the Bank or its
affiliates, or (y) interfere with or damage (or attempt to
interfere with or damage) any relationship between the Bank or
its affiliates and any such customer or prospective customer.
(b) Executive understands and agrees that this Section 4 will
limit both Executive's ability to earn a livelihood in a Competitive
Business and Executive's relationship with his customers. Executive
represents and warrants, however, that this Section 4 will not result
in severe economic hardship for him or his family. Executive
understands and agrees that money damages may not be a sufficient
remedy for any breach or attempted or threatened breach of this Section
4 by Executive and that the Bank shall be entitled to equitable relief,
including specific performance and injunctive relief as remedies for
any such breach or threatened or attempted breach (without the posting
of any bond). Executive hereby consents to the granting of an
injunction (temporary or otherwise) against Executive or to the
entering of any other court order against Executive prohibiting and
enjoining Executive from violating, or directing Executive to comply
with, any provision of this Section 4. Executive also agrees and
understands that such remedies shall be in addition to any and all
remedies, including damages, available to the Bank against Executive
for such breaches or threatened or attempted breaches.
(c) In addition to the Bank's rights set forth in paragraph
(b) of this Section 4, in the event that Executive shall violate the
terms and conditions of Sections 3 or 4 of this Agreement, the Bank may
terminate any payments payable by the Bank to Executive pursuant to
this Agreement.
5. COMPENSATION; BENEFITS
As compensation for the services provided by Executive to the Bank, the
Bank shall pay Executive an annual base salary of $220,000, less applicable
federal, state and local tax withholding, payable in accordance with the Bank's
customary payroll practices. In addition, Executive shall participate in such
employee benefit plans of the Bank as are generally made available to employees
of the Bank and on the same terms as such employees.
Upon approval by the Compensation Committee ("Committee") of the Board
of Directors of New York Community Bancorp, Inc. ("Bancorp"), Executive shall
receive a restricted stock award covering 18,000 shares of Bancorp common stock,
vesting in installments of 1,500 shares on the first business day of each
calendar quarter until fully vested. Such award shall be subject in all respects
to the terms and conditions of Bancorp's 2006 Stock Incentive Plan and shall be
reflected in a separate award agreement to be provided to Executive as soon as
administratively practicable following the date of Committee action. Such award
agreement shall further provide that, in the event the term of this Agreement is
not extended
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and, thereafter, Executive (i) voluntarily terminates employment (which
termination shall be treated as a "Retirement" for purposes of the plan) or (ii)
is terminated by the Bank without Cause, all unvested shares covered by the
award agreement shall fully vest as of Executive's termination date.
Executive shall be entitled to reimbursement for all reasonable
out-of-pocket expenses necessarily incurred in the performance of services under
this Agreement upon submission and approval of written statements and bills in
accordance with the expense reimbursement policies of the Bank as in effect from
time to time.
6. TERMINATION
The Bank may terminate this Agreement for "Cause" (as defined below) at
any time. In the event of any such termination, the only obligation of the Bank
under this Agreement will be to pay Executive any accrued but unpaid salary and
expenses due to Executive through the date of termination. The Bank may
terminate the Agreement without Cause upon providing thirty (30) days' prior
written notice to Executive, in which case the only obligation of the Bank under
this Agreement will be to pay Executive his base salary through the remaining
term of the Agreement (as if the early termination had not occurred), as well as
any accrued but unpaid expenses.
Executive may terminate this Agreement early for any reason upon thirty
(30) days' prior written notice to the Bank. Upon such termination, the only
obligation of the Bank under this Agreement will be to pay Executive any accrued
but unpaid salary through the date of termination. The Agreement shall terminate
upon Executive's death, in which case the only obligation of the Bank under this
Agreement shall be the payment of any accrued but unpaid salary and expenses
owed through the date of Executive's death.
As used in this Agreement, "Cause" shall mean (i) a willful failure of
Executive to perform his duties under this Agreement after notice and a
reasonable opportunity to cure, (ii) acts or omissions by Executive causing
material injury to the property or business of the Bank, or (iii) the conviction
of Executive, or the entry of a plea of guilty or nolo contendere by Executive
to any felony.
Any amount payable under the applicable paragraph of this Section 6
shall be payable to Executive (or his estate, as the case may be) in a lump sum
within ten (10) days of termination.
7. ENTIRE AGREEMENT; MODIFICATION
This Agreement contains the entire agreement between Executive and the
Bank. Executive acknowledges further that he has entered into this Agreement
without reliance on any promise or representation, other than those expressly
contained herein and that the Agreement cannot be amended except in writing
signed by both parties.
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8. NOTICES
For purposes of this Agreement, all notices and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered or five (5) days after deposit in the United
States mail, certified and return receipt requested, postage prepaid, to the
parties at such address as either party may have furnished to the other in
writing in accordance, except that notices of change of address shall be
effective only upon receipt.
9. INTERPRETATION; SEVERABILITY
This Agreement is intended to satisfy the requirements of Section 409A
of the Internal Revenue Code of 1986, as amended, in all respects. To the extent
any provision of this Agreement would not comply with such provision, it is
hereby superseded and modified as necessary to comply (such modification to be
determined in the good faith discretion of the Bank after consultation with the
Executive).
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
10. MISCELLANEOUS
If any party should waive any breach of any provision of this
Agreement, such party shall not thereby be deemed to have waived any preceding
or succeeding breach of the same or any other provision of this Agreement. This
Agreement and any rights or obligations hereunder may be assigned by the Bancorp
and the Bank to any successor in interest to the business of the Bancorp or the
Bank. This Agreement may not be assigned by Executive. The headings of the
sections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part of this Agreement nor to affect the meaning thereof.
All payments received by Executive under this Agreement will be treated
as compensation for services (and any taxes that are required to be withheld
under any law, rule or regulation may be so withheld).
11. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE.
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12. REQUIRED PROVISIONS.
Any payments made pursuant to this Agreement are subject to and
conditioned upon compliance with 12 U.S.C. ss.1828(k) and any rules and
regulations promulgated thereunder, including 12 C.F.R. Part 359.
IN WITNESS WHEREOF, New York Commercial Bank has caused this Agreement
to be executed and its seal to be affixed hereunto by its duly authorized
officer, and Executive has signed this Agreement, in each case on the date set
forth on the first page hereof.
ATTEST: NEW YORK COMMERCIAL BANK
/s/ Xxxxxx Xxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx Xxxx Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxxx X. Xxxxxxxxx
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Witness Xxxxxx X. Xxxxxxxxx
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