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Exhibit 10.7
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of December 15, 1998 between THE DIME
SAVINGS BANK OF NEW YORK, FSB (the "Bank"), a federal stock savings bank having
its principal executive offices at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
and XXXX X. XXXXX (the "Executive").
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A. The Bank is desirous of employing the Executive upon the terms and
conditions set forth in this Agreement.
B. The Executive is desirous of being employed by the Bank upon the terms
and conditions set forth in this Agreement.
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Therefore, the Bank and the Executive, intending to be legally bound,
agree as follows:
1. Employment. Subject to the terms and conditions of this
Agreement, the Bank hereby employs the Executive, and the Executive hereby
accepts such employment.
2. Term of Employment. (a) The term of the Executive's employment
under this Agreement shall be deemed to have commenced on the date of this
Agreement and shall continue until June 30, 2002 unless this Agreement has been
terminated prior thereto in accordance with its provisions. (As used in this
Agreement, (i) "Term" shall mean the full term of this Agreement and (ii)
"remaining Term" shall mean the balance of the Term remaining at a specified
time.)
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(b) The Executive's employment may be terminated during the Term of
this Agreement by the Bank or the Executive in the manner specified in this
Agreement. Any such termination of employment shall result in a termination of
this Agreement on the Effective Date of Termination (as defined in Section 13);
provided that, notwithstanding anything to the contrary in the foregoing, any
right of the Executive to any payments or benefits as a result of a termination
of the Executive's employment (as provided in this Agreement) shall survive the
termination of this Agreement.
3. Offices. During the period during the Term ending June 30, 2000,
the Executive shall continue to serve as an officer of the Bank and its parent
corporation, Dime Bancorp, Inc. (the "Company"). In addition, during the period
during the Term ending June 30, 2000, the Executive shall serve as an officer of
the Bank's mortgage banking subsidiary, North American Mortgage Company or its
successor (the "Subsidiary"). During the period during the Term commencing July
1, 2000, the Executive shall serve as an executive employee of the Bank. During
the Term, the Executive shall also serve, for any period for which the Executive
may from time to time be elected, as an officer or director of subsidiaries or
affiliates of the Bank.
4. Duties. (a) During the period during the Term ending June 30,
1999, the Executive shall serve as an Executive Vice President of the Bank and
the Company and as the Chief Executive Officer of the Subsidiary and shall
perform such duties in connection therewith as may be assigned to him from time
to time by the Chief Executive Officer of the Bank or the Company, as the case
may be.
(b) During the period during the Term from July 1, 1999 through June
30, 2000, the Executive shall continue to serve as an Executive Vice President
of the Bank and the
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Company and perform the duties in connection therewith set forth in Section
4(a). In addition, during such period the Executive shall serve as transitional
Chief Executive Officer of the Subsidiary and perform the duties in connection
therewith set forth in Section 4(a) until a successor Chief Executive Officer of
the Subsidiary is appointed during such period.
(c) During the period during the Term commencing July 1, 2000, the
Executive shall serve as an executive employee of the Bank and shall perform
such duties in connection therewith as may be assigned to him from time to time
by the Chief Executive Officer of the Bank.
(d) During the period during the Term ending June 30, 1999 (except
for periods of illness and vacation), substantially all of the Executive's
business time, attention, skill and efforts shall be devoted to the performance
of the Executive's duties under this Agreement. During the period during the
Term from July 1, 1999 through June 30, 2000 (except for periods of illness and
vacation), not less than the equivalent of 144 full-time days of the Executive's
business time, attention, skill and efforts shall be devoted to the performance
of the Executive's duties under this Agreement. During each of the periods
during the Term from July 1, 2000 through June 30, 2001, and from July 1, 2001
through June 30, 2002 (except for periods of illness and vacation), not less
than the equivalent of 84 full-time days of the Executive's business time,
attention, skill and efforts shall be devoted to the performance of the
Executive's duties under this Agreement. During each period during the Term
commencing on or after July 1, 1999, the Bank shall have the right, in its
discretion, to designate the days or portions thereof on which the Executive
shall be required to perform his duties under this Agreement. To the extent that
the Executive engages in business activities during any period during the Term
commencing
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on or after July 1, 1999 in addition to his duties to the Bank set forth herein,
it is understood and agreed that the Executive shall not engage in any
activities which would materially interfere with his ability to perform his
duties hereunder as requested from time to time by the Bank and shall not
engage, directly or indirectly, as an officer, director, principal, employee,
stockholder or consultant of any corporation or other business entity which
competes in any material respect with the businesses carried on by the Bank and
its subsidiaries; provided, however, that the Executive will be permitted to own
as a passive investor less than 5% of any class of publicly-traded securities of
any entity which competes with the Bank and its subsidiaries without being
deemed to have violated this Section 4(d). Subject to the foregoing restrictions
and to the prior fulfillment of his obligations to the Bank hereunder, the
Executive shall be entitled to perform consulting services for third parties
during any period during the Term commencing on or after July 1, 1999 with the
prior written approval of the Bank, such approval not to be unreasonably
withheld or delayed.
5. Compensation. (a) The annualized salary of the Executive during
the period during the Term ending June 30, 1999 shall be at the rate of
$375,000, which shall, subject to the provisions of Section 5(g), be payable in
installments in accordance with the prevailing general payroll practice of the
Bank as it may exist from time to time.
(b) The annual salary of the Executive during the period during the
Term from July 1, 1999 through June 30, 2000 shall be at the rate of $250,000
for the equivalent of 144 full-time days plus $2,500 per day for each full-time
equivalent day during such period in excess of 144 days during which the
Executive performs his duties hereunder, which shall, subject to the
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provisions of Section 5(g), be payable in installments in accordance with the
prevailing general payroll practice of the Bank as it may exist from time to
time.
(c) The annual salary of the Executive during each of the periods
during the Term from July 1, 2000 through June 30, 2001, and from July 1, 2001
through June 30, 2002 shall be at the rate of $175,000 for the equivalent of 84
full-time days plus $2,500 per day for each full-time equivalent day during such
periods in excess of 84 days during which the Executive performs his duties
hereunder, which shall, subject to the provisions of Section 5(g), be payable in
installments in accordance with the prevailing general payroll practice of the
Bank as it may exist from time to time.
(d) As used in this Agreement, "annual salary" shall mean, at any
time, the annual rate of salary then payable to the Executive pursuant to this
Section 5 (before deduction of any amounts deferred under any deferred
compensation plan of the Bank, any voluntary contributions to the Retirement
401(k) Investment Plan of the Company or other similar qualified plan under
Section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code")
(collectively, the "401(k) Plan"), or any other deductions from income) and
shall be exclusive of bonuses, incentive compensation or other compensation or
benefits paid to or accrued for the Executive other than pursuant to this
Section 5.
(e) Solely to the extent that the Executive does not accrue benefits
pursuant to the qualified retirement plans of the Bank or the Benefit
Restoration Plan of The Dime Savings Bank of New York, FSB (the "Benefit
Restoration Plan") with respect to any period during his employment by the Bank
following June 30, 1999, and to the extent not otherwise provided pursuant to
Section 11(g)(ii) or 11(g)(iii) or otherwise limited pursuant to Section 8(c),
unless the
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Executive terminates his employment prior thereto other than as contemplated by
Section 11(c)(ii) in connection with a Change in Control (as defined in Section
11(a)), the Executive shall be paid, within 120 days of the earlier to occur of
(A) the Effective Date of Termination of the Executive's employment by the Bank
(unless such termination is for "cause," as defined in Section 8(b)), or (B)
June 30, 2002, a lump sum amount equal to the sum of the following: (i) the
excess of the Present Value (as defined below) of the benefits the Executive
would have accrued and would have a vested interest in under the Retirement Plan
of Dime Bancorp, Inc. (the "Retirement Plan") and the related provisions of the
Benefit Restoration Plan if the Executive had been otherwise employed as a
full-time salaried employee through the remaining Term at the time of such
termination (commencing with the date of this Agreement) earning the same amount
of base pay as the annual salary (as described in this Section 5) which would
have been paid to the Executive over such remaining Term in accordance with the
provisions of this Agreement, over the Present Value of the benefits the
Executive actually accrued under the Retirement Plan and the related provisions
of the Benefit Restoration Plan in which the Executive has a vested interest,
plus (ii) the excess, if any, of the amount of Bank matching contributions that
would have been made and in which the Executive would have a vested interest
under the 401(k) Plan and the related provisions of the Benefit Restoration
Plan, in each instance if the Executive had been otherwise employed as a
full-time salaried employee of the Bank through the remaining Term at the time
of such termination (commencing with the date of this Agreement) earning the
same amount of base pay as the annual salary (as described in this Section 5)
which would have been paid to the Executive over such remaining Term in
accordance with the provisions of this Agreement, and assuming solely for these
purposes that
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the Executive had made the maximum contributions permitted under the terms of
the 401(k) Plan, over the amount actually accrued by the Executive with respect
to Bank matching contributions under such 401(k) Plan and the related provisions
of the Benefit Restoration Plan in which the Executive has a vested interest.
For these purposes, the "Present Value" of benefits shall be determined as of
the date of the termination of the Executive's employment with the Bank and
shall be calculated in the same manner as then applies for purposes of
determining lump sum benefits under the Retirement Plan. Further, in determining
the value of benefits described in clause (ii) above, such benefits shall be
credited with the same deemed rate of earnings (or losses) as apply to the
Executive's deemed investments of his 401(k) Plan Restoration Account under the
Benefit Restoration Plan. The Executive shall participate in the Supplemental
Executive Retirement Plan of the Company (the "SERP") with a "Pension Goal"
under such plan of not less than 50% (with such Pension Goal, "Compensation" and
"Average Compensation" as described in the grant letter related to the SERP of
even date herewith (the "SERP Grant Letter")), but subject to the vesting
provisions under such plan or, as applicable, Section 11(g)(ii). The benefits
otherwise provided pursuant to this Section 5(e) that relate to benefits under
the Retirement Plan and the related provisions of the Benefit Restoration Plan
shall offset the benefits, if any, to be provided under the SERP (with the
offset of the other Section 5(e) benefits based upon such benefits as if they
were payable in the form of a single life annuity or otherwise as provided under
the SERP).
(f) The Executive shall not have or acquire by virtue of this
Agreement any rights to participate in, or receive benefits with respect to, any
compensation or benefit plan or program of the Bank, except (i) that while
employed by the Bank the Executive may participate in such
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plans or programs to the extent provided in such plans and programs and on the
same basis as if the Executive's employment were not subject to the terms and
conditions of this Agreement, or (ii) as otherwise specifically provided in this
Agreement.
(g) Notwithstanding anything to the contrary in the foregoing
provisions, the payment of any amounts that would otherwise be payable to the
Executive but which would be in excess of the amount which the Company, the Bank
or the Subsidiary could deduct for federal income tax purposes if then paid, on
account of the operation of Section 162(m) of the Code, shall be deferred to the
extent that such deferral is required pursuant to a policy adopted by the
Compensation Committee of the Company or the Bank and, to the extent so
deferred, shall be payable pursuant to the relevant terms of the Dime Bancorp,
Inc. Voluntary Deferred Compensation Plan; provided, however, that, if a Change
in Control (as defined in Section 11(a)) has occurred, deferral of amounts
payable hereunder to the Executive on or after the date of such Change in
Control will only be required if and to the extent such policy in effect
immediately prior to the Change in Control (without taking into consideration
any changes therein made in contemplation of the occurrence of the Change in
Control) requires or would have required such deferral.
6. Disability. (a) The Bank may terminate the Executive's employment
under this Agreement for "permanent disability" if (i) the Executive shall
become physically or mentally disabled or incapacitated to the extent that the
Executive has been absent from the Executive's duties with the Bank on account
of such disabilities or incapacitation as determined in a manner consistent with
the policy which applies generally to employees of the Bank on a full-time basis
for a period of six consecutive months, and (ii) within 30 days after written
notice
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of proposed termination for permanent disability is given by the Bank to the
Executive, the Executive shall not have returned to full-time performance of the
Executive's duties.
(b) In the event of termination for "permanent disability," the Bank
shall continue to pay the Executive an amount equal to the Executive's then
annual salary pursuant to Section 5 (less any benefits that would have been
payable to the Executive had the Executive elected the maximum available amount
of disability insurance coverage available from the Bank) for a period
commencing on the Effective Date of Termination and ending on the first
anniversary thereof (or the end of the remaining Term, if earlier).
Notwithstanding the first sentence of this Section 6(b), any such payment shall
terminate upon the earliest to occur of (A) the date the Executive returns to
the level of employment with the Bank otherwise contemplated by this Agreement;
(B) the Executive's full-time employment by another employer; or (C) the
Executive's death. In the event of termination for "permanent disability," the
Bank also shall continue to provide until the end of the remaining Term (or the
Executive's earlier death) the same level of life, medical and dental insurance
coverage as is maintained by the Bank for full-time employees of the Bank,
provided that the Executive shall continue to pay all amounts in respect of such
coverage that other employees receiving the same level of coverage are required
to pay. In the event of a termination of the Executive's employment for
"permanent disability" during the Term at any time following a Change in Control
(as defined in Section 11(a)), the provisions of Section 11 shall apply in lieu
of the provisions of this Section 6(b).
(c) There shall be no reduction in the compensation payable to the
Executive or the Executive's other rights under this Agreement during any period
when the Executive is
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incapable of performing some or all of the Executive's duties by reason of
temporary or partial disability.
7. Death. In the event of the Executive's death during the Term,
this Agreement and all of the Bank's obligations under this Agreement shall
terminate.
8. Termination by the Bank. (a) The Bank may terminate the
Executive's employment under this Agreement at any time by giving the Executive
written notice of such termination, provided that, except where termination is
for "cause" (as defined in Section 8(b)), such notice shall be provided at least
30 days prior to the Effective Date of Termination. In the event of a
termination of the Executive's employment by the Bank, other than a termination
for "cause" (as defined in Section 8(b)), the Bank shall (subject to the
provisions of Section 8(c)) (i) pay to the Executive, as a severance payment for
services previously rendered to the Company and the Bank, a lump sum equal to
the aggregate annual salary (as defined in Section 5(d)) payable to the
Executive with respect to the remainder of the Term as of the Effective Date of
Termination (assuming for this purpose that the Executive performed services
hereunder for no more than the minimum number of full-time equivalent days
required in each of the periods of the Term commencing on or after December 2,
1998) and (ii) maintain the same level of life, medical and dental insurance
coverage as is maintained by the Bank for full-time employees of the Bank,
provided that the Executive shall continue to pay all amounts in respect of such
coverage that other employees receiving the same level of coverage are required
to pay, for the remainder of the Term as of the Effective Date of Termination
(or the Executive's earlier death). In the event of a termination of the
Executive's employment by the Bank during the Term
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following a Change in Control, the provisions of Section 11 shall apply in lieu
of the provisions of the immediately preceding sentence of this Section 8(a).
(b) The Executive shall have no right to receive compensation or
other benefits under this Agreement for any period after the Effective Date of
Termination if the Executive's employment is terminated for cause. As used in
this Agreement, "cause" shall mean the Executive's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform assigned duties, willful violation of any
law, rule or regulation (other than traffic violations or similar offenses) or
final cease and desist order or material breach of any provision of this
Agreement.
(c) (i) Notwithstanding any other provision of this Section 8 or of
Section 11, if at the Effective Date of Termination any statute, regulation,
order, agreement, or regulatory interpretation thereof that is valid and binding
upon the Bank (a "Regulatory Restriction") shall restrict, prohibit or limit the
amount of any payment or the provision of any benefit that the Bank would
otherwise be liable for under this Section 8 or under Section 11, then the
amount that the Bank shall pay to the Executive hereunder shall not exceed the
maximum amount permissible under such Regulatory Restriction; provided, that if
such Regulatory Restriction shall subsequently be rescinded, superseded, amended
or otherwise determined not to restrict, limit or prohibit payment by the Bank
of amounts otherwise due the Executive hereunder, then the Bank shall promptly
thereafter pay to such Executive any amounts (or the value of any benefit)
previously withheld from such Executive as a result of such Regulatory
Restriction.
(ii) Notwithstanding any other provision of this Section 8 or of
Section 11, in the event that any amount otherwise payable hereunder other than
on account of events described in
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Sections 11(c)(i) or 11(c)(ii) following a Change in Control (as hereinafter
defined) would be deemed to constitute a parachute payment (a "Parachute
Payment") within the meaning of Section 280G of the Code, and if any such
Parachute Payment, when added to any other payments which are deemed to
constitute Parachute Payments, would otherwise result in the imposition of an
excise tax under Section 4999 of the Code, the amounts payable (other than
amounts payable under the SERP or otherwise payable on account of events
described in Sections 11(c)(i) or 11(c)(ii) following a Change in Control) shall
be reduced by the smallest amount necessary to avoid the imposition of such
excise tax. Any such limitation shall be applied to such compensation and
benefit amounts, and in such order, as the Bank shall determine in its sole
discretion. References to the Code in this Agreement shall be to the Code as
presently in effect or to the corresponding provisions of any succeeding law.
(d) As of the date hereof, the principal place of business at which
the Executive shall be based for the performance of his duties pursuant to this
Agreement is located in Tampa, Florida. If the Bank shall relocate such
principal place of business at which the Executive shall be based to a location
which is more than 75 miles from Tampa, Florida, the Executive shall have the
right, for a period of 30 days following such relocation, to elect to treat such
relocation as a termination of the Executive's employment by the Bank without
cause (as defined in Section 8(b)) by giving the Bank written notice of such
election. In the event that the Executive fails to give notice within such
30-day period, he shall be deemed to have waived his right to make such an
election with respect to such relocation.
(e) Upon the termination of the Executive's employment by the Bank
pursuant to the provisions of this Section 8, to the extent not otherwise
limited by Section 8(c) and except
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where termination is for "cause" (as defined in Section 8(b)), each outstanding
Non-Accelerated Stock Option (as defined in Section 11(d)(ii)) and each share of
restricted stock which has not previously vested that is held by the Executive
shall (to the extent permitted by the plan under which such Non-Accelerated
Stock Option or restricted stock was granted), notwithstanding anything to the
contrary in the grant letter related to such Non-Accelerated Stock Option or
restricted stock and regardless of the actual Effective Date of Termination,
immediately vest and become exercisable, in the case of a Non-Accelerated Stock
Option, and immediately vest, in the case of restricted stock.
(f) If the Executive's employment is proposed to be terminated by
the Bank for "cause" (as defined in Section 8(b)), the Bank shall, prior to
delivering to the Executive a notice of termination, afford the Executive
reasonable prior notice of such proposed termination and an opportunity for him,
together with counsel, to be heard.
9. Voluntary Termination by the Executive. The Executive shall have
the right to terminate the Executive's employment under this Agreement at any
time upon at least 30 but not more than 60 days' prior written notice to the
Bank. If this Agreement is terminated pursuant to the immediately preceding
sentence, all of the Bank's obligations under this Agreement shall terminate and
the Executive shall not be entitled to any compensation or benefits after the
Effective Date of Termination, except to the extent provided in Section 11.
10. Additional Termination and Suspension Provisions. (a) If the
Executive is removed and/or permanently prohibited from participating in the
conduct of the Bank's affairs by an order issued under Section 8(e)(4) or (g)(1)
of the Federal Deposit Insurance Act (12 U.S.C.
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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 of the
parties shall not be affected.
(b) If the Bank is in default (as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act), all obligations under this Agreement shall
terminate as of the date of default, but this paragraph shall not affect any
vested rights of the parties.
(c) All obligations under this Agreement shall be terminated, except
to the extent determined that continuation of this Agreement is necessary for
the continued operation of the Bank, (i) by the Director of Thrift Supervision
or his or her designee (the "Director"), at the time the Federal Deposit
Insurance Corporation enters into an agreement to provide assistance to or on
behalf of the Bank under the authority contained in Section 13(c) of the Federal
Deposit Insurance Act; or (ii) by the Director, at the time the Director
approves a supervisory merger to resolve problems related to operation of the
Bank or when the Bank is determined by the Director to be in an unsafe or
unsound condition. Any rights of the parties that have already vested, however,
shall not be affected by such action.
(d) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
1818(e)(3) and (g)(1)), the Bank's obligations under this Agreement shall be
suspended as of the date of service unless stayed by appropriate proceedings. If
the charges in the notice are dismissed, the Bank may in its discretion (a) pay
the Executive all or part of the compensation withheld while its contract
obligations were suspended and (b) reinstate (in whole or in part) any of its
obligations which were suspended.
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(e) The provisions of paragraphs (a) through (d) of this Section 10
are required to be set forth in this Agreement by regulations applicable to the
Bank on the date of this Agreement. If any such regulation shall hereafter be
amended or modified, or if any new regulation applicable to the Bank and
effective after the date of this Agreement shall require the inclusion in this
Agreement of a provision not presently included in this Agreement, then the
foregoing provisions of paragraphs (a) through (d) of this Section 10 shall be
deemed amended to the extent necessary to give effect in this Agreement to any
such amended, modified or new regulation.
11. Change in Control. (a) As used in this Agreement, a "Change in
Control" shall be deemed to have occurred if the event set forth in any one of
the following paragraphs shall have occurred:
(I) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired directly from
the Company or its Affiliates) representing 35% or more of the combined
voting power of the Company's then outstanding securities; or
(II) the following individuals cease for any reason to constitute a
majority of the number of directors then serving as directors of the
Company: individuals who, on July 24, 1997, constitute the Board of
Directors of the Company and any new director (other than a director whose
initial assumption of office is in connection with the settlement of an
actual or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the
Company) whose
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appointment or election by the Board of Directors of the Company or
nomination for election by the Company's stockholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors on July 24, 1997 or whose
appointment, election or nomination for election was previously so
approved or recommended; or
(III) there is consummated a merger or consolidation of the Company
or any direct or indirect subsidiary of the Company with any other
corporation or entity, other than (i) a merger or consolidation which
would result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity or any Parent thereof), in combination
with the ownership of any trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any subsidiary of the
Company, at least 65% of the combined voting power of the securities of
the Company, such surviving entity or any Parent thereof outstanding
immediately after such merger or consolidation or (ii) a merger or
consolidation effected solely to implement a recapitalization of the
Company or the Bank (or similar transaction) in which no Person is or
becomes the Beneficial Owner, directly or indirectly, of securities of the
Company or the Bank (not including in the securities beneficially owned by
such Person any securities acquired directly from the Company or its
Affiliates) representing 35% or more of the combined voting power of the
Company's or the Bank's then outstanding securities; or
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(IV) the stockholders of the Company or the Bank approve a plan of
complete liquidation or dissolution of the Company or the Bank,
respectively, or there is consummated a sale or disposition by the Company
or any of its subsidiaries of any assets which individually or as part of
a series of related transactions constitute all or substantially all of
the Company's consolidated assets (provided that, for these purposes, a
sale of all or substantially all of the voting securities of the Bank or a
Parent of the Bank shall be deemed to constitute a sale of substantially
all of the Company's consolidated assets), other than any such sale or
disposition to an entity at least 65% of the combined voting power of the
voting securities of which are owned by stockholders of the Company in
substantially the same proportions as their ownership of the voting
securities of the Company immediately prior to such sale or disposition;
or
(V) the execution of a binding agreement that if consummated would
result in a Change in Control of a type specified in clause (I) or (III)
of this Section 11(a) (an "Acquisition Agreement") or of a binding
agreement for the sale or disposition of assets that, if consummated,
would result in a Change in Control of a type specified in clause (IV) of
this Section 11(a) (an "Asset Sale Agreement") or the adoption by the
Board of Directors of the Company or the Bank of a plan of complete
liquidation or dissolution of the Company or the Bank that, if
consummated, would result in a Change in Control of a type specified in
clause (IV) of this Section 11(a) (a "Plan of Liquidation"), provided
however, that a Change in Control of the type specified in this clause (V)
shall not be deemed to exist or have occurred as a result of the execution
of such Acquisition Agreement or Asset Sale Agreement, or the adoption of
such a Plan of Liquidation, from
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and after the Abandonment Date if the Effective Date of Termination of the
Executive's employment has not occurred on or prior to the Abandonment
Date. As used in this Section, the term "Abandonment Date" shall mean the
date on which (A) an Acquisition Agreement, Asset Sale Agreement or Plan
of Liquidation is terminated (pursuant to its terms or otherwise) without
having been consummated, (B) the parties to an Acquisition Agreement or
Asset Sale Agreement abandon the transactions contemplated thereby, (C)
the Bank or the Company abandons a Plan of Liquidation or (D) a court or
regulatory body having competent jurisdiction enjoins or issues a cease
and desist or stop order with respect to or otherwise prevents the
consummation of, or a regulatory body notifies the Bank or the Company
that it will not approve, an Acquisition Agreement, Asset Sale Agreement
or Plan of Liquidation or the transactions contemplated thereby and such
injunction, order or notice has become final and not subject to appeal.
As used in connection with the foregoing definition of Change in
Control, "Affiliate" shall have the meaning set forth in Rule 12b-2 promulgated
under Section 12 of the Exchange Act; "Beneficial Owner" shall have the meaning
set forth in Rule 13d-3 under the Exchange Act; "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended from time to time; "Parent" shall
mean any entity that becomes the Beneficial Owner of at least 80% of the voting
power of the outstanding voting securities of the Company or of an entity that
survives any merger or consolidation of the Company or any direct or indirect
subsidiary of the Company; and "Person" shall have the meaning given in Section
3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof, except that such term shall not include (i) the Company or any of its
subsidiaries, a trustee or other fiduciary holding securities under an
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employee benefit plan of the Company or any of its Affiliates, an underwriter
temporarily holding securities pursuant to an offering of such securities, or a
corporation or entity owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock of the
Company.
(b) If the Bank, the Company or the Subsidiary shall relocate the
principal place of business at which the Executive shall be based for the
performance of his duties pursuant to this Agreement to a location which is more
than 75 miles from Tampa, Florida after a Change in Control, and if the
Executive shall, as a result, be required to change the Executive's principal
residence, the Bank shall (i) promptly pay (or reimburse the Executive for) all
reasonable moving expenses incurred by the Executive as a result of such change
in the Executive's principal residence, and (ii) indemnify the Executive
against, and reimburse the Executive for, any loss incurred as a result of the
sale of the Executive's principal residence (which loss shall be computed for
the purpose of this Agreement as the difference between the actual sales price
(net of closing costs and brokerage fees) of such residence and the fair market
value of such residence (computed as of the time such principal place of
business is relocated) as determined by an independent real estate appraiser
designated and paid by the Bank or the Company and acceptable to the Executive),
provided that such sale of the Executive's principal residence occurs within six
months after the Bank, the Company or the Subsidiary relocates the principal
place of business at which the Executive shall be based.
(c) (i) If a Change in Control shall occur, the Executive shall be
entitled to the compensation and benefits provided in paragraphs (d), (e), (f)
and (g) of this Section 11 upon the subsequent termination of the Executive's
employment, at any time during the remaining Term in
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effect at the time of the Change in Control, by the Bank (including, without
limitation, a termination for permanent disability), other than a termination
for cause, provided that the rights to any such compensation and benefits shall
be subject to the limitations and provisions set forth in Section 8(c).
(ii) If (A) a Change in Control shall occur, and thereafter the Bank
(notwithstanding its right to do so under Section 4 or Section 5) either (B)
makes a material change in the Executive's functions, duties or
responsibilities, which change would cause the Executive's position with the
Bank to become one of lesser responsibility, importance or scope from that
otherwise contemplated by this Agreement, or (C) reduces the Executive's annual
salary below that otherwise contemplated by this Agreement (an event specified
in clause (B) or (C) is hereafter referred to as a "Material Change"), the
Executive shall be entitled to the compensation and benefits provided in
paragraphs (d), (e), (f) and (g) of this Section 11 (subject to the limitations
and provisions set forth in Section 8(c)) upon the subsequent termination of the
Executive's employment, at any time during the remaining Term in effect at the
time of the Change in Control, by the Executive.
(iii) Only for purposes of determining whether there has been a
termination of the Executive's employment during the remaining Term in effect at
the time of a Change in Control (as specified in paragraphs (c)(i) and (c)(ii)
of this Section 11, as the case may be) so as to entitle the Executive to the
compensation and benefits provided in paragraphs (d), (e), (f) and (g) of this
Section 11, a termination of the Executive's employment following a Change in
Control shall be deemed to have occurred on such date during the remaining Term
that notice of termination is given by the Bank or the Executive to the other
(regardless of the Effective Date of Termination
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specified in such notice). Notwithstanding the immediately preceding sentence,
the Executive shall continue to be employed by the Bank pursuant to this
Agreement until the Effective Date of Termination specified in the notice of
termination.
(d)(i) Upon the occurrence of a Change in Control followed by any
termination of the Executive's employment pursuant to Section 11(c)(i) or
(c)(ii), to the extent not otherwise limited pursuant to Section 8(c), the Bank
shall pay the Executive, as a severance payment for services previously rendered
to the Bank, a lump sum equal to three times the Executive's annual salary (as
defined in Section 5(d)) (assuming for this purpose that the Executive performed
services hereunder for no more than the minimum number of full-time equivalent
days required in each of the periods of the Term commencing on or after July 1,
1999).
(ii) Upon the occurrence of (a) the termination of the Executive's
employment by the Bank (unless such termination is for "cause" as defined in
Section 8(b)) other than any termination of the Executive's employment pursuant
to Section 11(c)(i) or (c)(ii) following a Change in Control, to the extent not
otherwise limited pursuant to Section 8(c): (A) each Non-Accelerated Stock
Option held by the Executive shall (to the extent permitted by the plan under
which such Non-Accelerated Stock Option was granted), notwithstanding anything
to the contrary in the grant letter related to such Non-Accelerated Stock Option
and regardless of the actual Effective Date of Termination, vest and become
exercisable in accordance with the provisions of, and remain exercisable for the
term specified in, such grant letter as if there had been no termination of the
Executive's employment and the Executive remained in the employment of the Bank
for the entire term of such Non-Accelerated Stock Option and (B) each Vested
Stock Option held by the Executive shall (to the extent permitted by the plan
under which
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such Vested Stock Option was granted), notwithstanding anything to the contrary
in the grant letter related to such Vested Stock Option and regardless of the
actual Effective Date of Termination, remain exercisable for the term specified
in such grant letter as if there had been no termination of the Executive's
employment and the Executive remained in the employment of the Bank for the
entire term of such Vested Stock Option. As used in this Section 11(d)(ii) and
Section 11(d)(iii), the term (I) "Non-Accelerated Stock Option" shall mean any
stock option (including any tandem stock appreciation right) previously or
hereafter granted to the Executive under a stock incentive or stock option plan
of the Company that has not, pursuant to the provisions of such stock incentive
or stock option plan or the grant letter pursuant to which such stock option was
granted to the Executive, vested and become exercisable prior to the Effective
Date of Termination and (II) "Vested Stock Option" shall mean any stock option
(including any tandem stock appreciation right) previously or hereafter granted
to the Executive under a stock incentive or stock option plan of the Company
that vests and becomes exercisable prior to the Effective Date of Termination.
(iii) Upon the occurrence of a Change in Control followed by any
termination of the Executive's employment pursuant to Section 11(c)(i) or
(c)(ii), to the extent not otherwise limited pursuant to Section 8(c)(i): (A)
each Non-Accelerated Stock Option held by the Executive shall (to the extent
permitted by the plan under which such Non-Accelerated Stock Option was
granted), notwithstanding anything to the contrary in the grant letter related
to such Non-Accelerated Stock Option and regardless of the actual Effective Date
of Termination, immediately vest and become exercisable in accordance with the
provisions of, and remain exercisable for the term specified in, such grant
letter as if there had been no termination of the
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Executive's employment and the Executive remained in the employment of the Bank
for the entire term of such Non-Accelerated Stock Option and (B) each Vested
Stock Option held by the Executive shall (to the extent permitted by the plan
under which such Vested Stock Option was granted), notwithstanding anything to
the contrary in the grant letter relating to such Vested Stock Option and
regardless of the actual Effective Date of Termination, remain exercisable for
the term specified in such grant letter as if there had been no termination of
the Executive's employment and the Executive had remained in the employment of
the Bank for the entire term of such Vested Stock Option.
(iv) Upon the occurrence of (a) the termination of the Executive's
employment by the Bank (unless such termination is for "cause" as defined in
Section 8(b)) or (b) a Change in Control followed by any termination of the
Executive's employment pursuant to Section 11(c)(i) or (c)(ii), to the extent
not otherwise limited pursuant to Section 8(c), each grant of restricted stock
to the Executive shall (to the extent permitted by the plan under which such
restricted stock was granted), notwithstanding anything to the contrary in the
grant letter related to such restricted stock, vest and become non-forfeitable
by the Executive as if there had been no termination of the Executive's
employment and the Executive remained in the employment of the Bank for the
entire term of the vesting period applicable to such grant of restricted stock.
(e) Any payment pursuant to Section 11(d)(i) or 11(g)(iii) shall be
made to the Executive within 30 days after the Effective Date of Termination.
(f) Upon the occurrence of a Change in Control followed by any
termination of the Executive's employment pursuant to Section 11(c)(i) or
(c)(ii), to the extent not otherwise
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limited pursuant to Section 8(c), the Bank shall cause to be continued until the
end of the remaining Term (or the Executive's earlier death) the same level of
life, disability, medical and dental insurance coverage as is maintained by the
Bank for full-time employees of the Bank, provided that the Executive shall
continue to pay all amounts in respect of such coverage that other employees
receiving the same levels of coverage are required to pay.
(g)(i) In the event of termination of the Executive's employment
pursuant to Section 11(c)(i) or (c)(ii), to the extent not otherwise limited
pursuant to Section 8(c), the Executive shall vest in the benefits under Section
5(e) hereof (but which shall then be calculated assuming that the benefits
payable under the Retirement Plan, the 401(k) Plan and the Benefit Restoration
Plan are fully vested).
(g)(ii)(A) On and after any Change in Control, to the extent not
otherwise limited pursuant to Section 8(c)(i), the Executive shall be eligible
to be paid, under the SERP, a SERP benefit, to the extent vested (and subject to
additional vesting in accordance with the terms of the SERP as such plan
provided immediately prior to the Change in Control, or if it results in a
greater vested percentage, with vesting determined otherwise pursuant to this
Section 11(g)(ii)), that is not less than a benefit calculated based upon the
amount of the Executive's "Pension Goal" and "Average Compensation" and the
otherwise applicable terms of the SERP, each as determined immediately prior to
the Change in Control (but with offsets provided for therein related to benefits
otherwise to be provided after the Change in Control). The rights of the
Executive and the obligations of the Bank with respect to the benefits described
under this Section 11(g)(ii)(A) shall survive the termination of this Agreement.
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(g)(ii)(B) In the event of termination of the Executive's employment
pursuant to Section 11(c)(i) or (c)(ii), to the extent not otherwise limited
pursuant to Section 8(c), notwithstanding any vesting provisions that would in
other circumstances require further service under the SERP, the Executive shall
be fully vested in the Executive's SERP benefit, which SERP benefit shall
otherwise be payable in accordance with the terms of the SERP, but offset by the
benefits provided pursuant to Section 5(e) hereunder as set forth therein and in
accordance with Section 11(g)(i).
(iii) In the event of termination of the Executive's employment
pursuant to Section 11(c)(i) or (c)(ii), to the extent not otherwise limited
pursuant to Section 8(c), the Executive shall be entitled to receive in a lump
sum payment an amount equal to any amounts forfeited by the Executive under the
401(k) Plan and under the Benefit Restoration Plan (solely to the extent such
Benefit Restoration Plan supplements benefits under the 401(k) Plan) as in
effect immediately prior to the Change in Control (or, if more favorable to the
Executive, as in effect immediately prior to the Effective Date of Termination).
(h)(i) If, on account of events described in Sections 11(c)(i) or
11(c)(ii) following a Change in Control, any payment or other benefit paid or to
be paid or any property transferred or to be transferred (collectively, a
"Severance Payment") with respect to one or more calendar years by or on behalf
of the Bank (or any affiliate of the Bank) to the Executive pursuant to this
Agreement shall constitute an "excess parachute payment" within the meaning of
Section 280G(b) of the Code subject to the tax imposed by Section 4999 of the
Code (the "Excise Tax"), then the Bank shall pay to the Executive an additional
amount (the "Gross Up Payment") such that the amount paid or transferred to the
Executive, after deduction of any Excise Tax on the
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Severance Payment, and any federal, state and local income tax, employment tax
and Excise Tax upon the Gross Up Payment, shall be equal to the Severance
Payment. In addition, if, absent a Change in Control or in other circumstances
following a Change in Control, notwithstanding the reductions mandated by
Section 8(c), the SERP benefits (if any) otherwise payable to the Executive
shall constitute an "excess parachute payment" within the meaning of Section
280G(b) of the Code subject to the Excise Tax, then the Bank shall pay to the
Executive one or more Gross Up Payments such that the amount of such Gross Up
Payments, when combined with such SERP benefits, after deduction of any Excise
Tax on the SERP benefits, and any federal, state and local income tax,
employment tax and Excise Tax upon the Gross Up Payments, shall be equal to such
SERP benefits.
(ii) For purposes of determining under Section 11(h)(i) whether any
portion of a Severance Payment or SERP benefit will be subject to the Excise Tax
and the amount of such Excise Tax, (A) the Severance Payment or SERP benefit and
payment provided for in Section 11(h)(i) shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section 280(G)(b)(1) of the Code shall
be treated as subject to the Excise Tax, unless and to the extent that tax
counsel selected by the Bank's independent auditors and acceptable to the
Executive is of the opinion that the Severance Payment or SERP benefit (in whole
or in part) does not constitute a "parachute payment" or such "excess parachute
payment" (in whole or in part) represents reasonable compensation for services
actually rendered within the meaning of Section 280G(b)(4) of the Code in excess
of the allocable base amount within the meaning of Section 280G(b)(3) of the
Code, or the Severance Payment or SERP benefit is otherwise not subject to the
Excise Tax, (B)
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the amount of the Severance Payment or SERP benefit that is treated as subject
to the Excise Tax shall be equal to the lesser of (X) the total amount of the
Severance Payment or SERP benefit, as applicable, and (Y) the amount of "excess
parachute payments" within the meaning of Section 280G(b)(1) of the Code (after
applying clause (A) above), (C) any Gross Up Payment pursuant to Section
11(h)(i) shall be treated as subject to the Excise Tax in its entirety and (D)
the value of any non-cash benefits or any deferred payment or benefit shall be
determined by the Company's independent auditors in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code.
(iii) If in circumstances described in Section 11(h)(i), by reason
of the filing by the Executive of an amended tax return, an audit by the
Internal Revenue Service or other taxing authority, or a final determination by
a court of competent jurisdiction, it is determined that "excess parachute
payments" exceeding those previously reported in his tax returns were received
by the Executive and as a result an additional Excise Tax (the "Additional
Excise Tax") shall become due, the Bank shall pay the Executive an additional
amount (the "Subsequent Gross Up Payment") such that the amount paid or
transferred to the Executive after deduction of (A) any Additional Excise Tax
and (B) on an after tax basis, any interest, additions and penalties with
respect to the Additional Excise Tax and (C) any federal, state and local income
tax, employment tax and Excise Tax upon the Subsequent Gross up Payment and (D)
the payments provided for in Section 11(h)(i), shall be equal to the Severance
Payment or SERP benefits, as appropriate.
(iv) Any Gross Up Payment required hereunder shall be made at least
ten days prior to the due date (without regard to extensions) of the Executive's
federal income tax return for the year with respect to which the "excess
parachute payment" is deemed made under the
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Code. Any Subsequent Gross Up Payment required hereunder shall be made to the
Executive within 30 days after the amount thereof is determined. Notwithstanding
the two immediately preceding sentences, the Bank shall pay any federal, state
and local tax or taxes and employment taxes required to be withheld from the
Executive's wages (within the meaning of Section 3121 and 3402 of the Code) with
respect to the "excess parachute payment" and any such tax or taxes paid by the
Company, the Bank or the Subsidiary to the Internal Revenue Service or state or
local taxing authority shall constitute payment to the Executive.
(v) If the Excise Tax is finally determined (whether by the filing
of an amended tax return by the Executive, by audit of the Internal Revenue
Service or other taxing authority, or by a final determination of a court of
competent jurisdiction) to be less than the amount paid to or on behalf of the
Executive under the provisions of Sections 11(h)(i)-(iv) and the overpayment is
refunded to the Executive, the Executive shall repay to the Bank, promptly
following the receipt of the refund, the portion of the Gross Up Payment (and/or
Subsequent Gross Up Payment) attributable to such reduction of the Excise Tax
(plus the portion attributable to federal, state and local income tax and
employment taxes imposed on the portion being repaid by the Executive but only
to the extent that the repayment may result in a tax benefit to the Executive
under Section 1341 of the Code and similar provisions of applicable state and
local law).
(vi) The provisions of this Section 11(h) shall inure to the benefit
of the Executive during the Term of this Agreement regardless of whether or not
his employment is terminated, and if the Executive's employment is terminated,
the rights and obligations of the Executive and the Bank under this Section
11(h) shall survive the termination of this Agreement.
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12. Post-Termination Obligations of the Executive. (a) Upon any
termination of the Executive's employment during the Term of this Agreement or
upon termination of the Executive's employment after the expiration of the Term
of this Agreement or upon retirement, the Executive agrees (i) not to make any
disclosure in violation of Section 12(b), (ii) to return to the Bank all
material documents relating to the business of the Company, the Bank, the
Subsidiary and their affiliates that are in the Executive's possession or under
the Executive's control, and (iii) except if the termination or retirement
occurs after a Change in Control, not to solicit (directly or indirectly), for
one year following the Effective Date of Termination (or date of termination
after the expiration of the Term) or retirement, the employment of any person
who is an employee of the Company, the Bank, the Subsidiary or their affiliates
on the Effective Date of Termination (or date of termination after the
expiration of the Term) or retirement or who, within six months prior to the
Effective Date of Termination (or date of termination after the expiration of
the Term) or retirement, was an employee of the Company, the Bank, or Subsidiary
or their affiliates, unless the Executive receives written permission from the
Bank to engage in the activities proscribed by this Section 12(a) or by Section
12(b) or to be relieved of any obligation under Section 12(a)(ii).
(b) The Executive recognizes and acknowledges that the confidential
business activities and plans for business activities of the Bank and its
subsidiaries and affiliates, as they may exist from time to time, are valuable,
special and unique assets of the Bank. The Executive shall not, during or at any
time after the Executive's employment, disclose any knowledge of the past,
present or planned business activities of the Bank or its subsidiaries or
affiliates that are of a confidential nature (collectively, the "Bank's
Confidential Activities") to any person, firm,
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corporation, bank, thrift institution or other entity for any reason or purposes
whatsoever. Notwithstanding anything in this Section 12(b) to the contrary, the
Executive (i) may disclose any knowledge of banking, financial and/or economic
principles, concepts or ideas that are not derived from the Bank's Confidential
Activities, and (ii) shall not be precluded from disclosures respecting the
Bank's Confidential Activities that are (A) made pursuant to compulsory legal
process or when required by an appropriate governmental agency; (B) public
knowledge or become public without the Executive's breach of this Section 12(b);
(C) already known to the party to whom the Executive makes such disclosures; or
(D) approved by the Bank for disclosure.
(c) The parties, recognizing that irreparable injury will result to
the Bank, its business and property in the event of the Executive's breach or
threatened breach of Section 12(a) or (b), agree that in the event of such
breach or threatened breach by the Executive, the Bank will be entitled, in
addition to any other remedies and damages that may be available, to seek and
obtain an injunction to restrain the violation of Section 12(a) or (b) by the
Executive.
13. Notices. All notices under this Agreement shall be in writing
and shall be delivered personally or sent by registered or certified mail,
return receipt requested, (a) to the Bank, at its address set forth above (to
the attention of its Chief Executive Officer) and (b) to the Executive, at the
Executive's residence address as appearing in the records of the Bank, or to
such other address as either party may hereafter designate in writing in the
manner provided in this Section 13. All notices under this Agreement shall be
deemed given (i) upon receipt if delivered personally or (ii) two days after
deposit in a facility of the U.S. Postal Service with postage prepaid. As used
in this Agreement, the term "Effective Date of Termination" shall
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mean the date specified in a notice hereunder on which such Executive's
employment is to terminate, provided, however, that no such notice shall specify
an Effective Date of Termination that is prior to the date on which any such
notice is given.
14. Complete Understanding. This Agreement, together with the
Agreement Regarding Initial Employment Terms attached hereto as Exhibit A, and
the SERP Grant Letter, constitute the complete understanding between the parties
with respect to the subject matter hereof and thereof and merge and supersede
all prior oral and written agreements and understandings and all contemporaneous
oral agreements and understandings with respect to the subject matter hereof and
thereof, including, without limitation, any other employment agreement
heretofore executed by the Executive and the Bank or any of its subsidiaries or
affiliates; provided, however, that where references in the Agreement Regarding
Initial Employment Terms relate to periods during the term of the employment
agreement described therein, they relate to such periods as contemplated in a
previous employment agreement entered into between the Bank and the Executive
dated as of December 2, 1996. In the event of any conflict between the express
provisions of this Agreement and either of such Agreement Regarding Initial
Employment Terms or such SERP Grant Letter, the express provisions of this
Agreement shall be controlling. This Agreement may not be amended, terminated or
rescinded except in a writing signed by the party to be charged.
15. No Waiver. The failure of either party at any time to require
performance by the other party of a provision of this Agreement or to resort to
a remedy at law or in equity or otherwise shall in no way affect the right of
such party to require full performance or to resort to such remedy at any time
thereafter nor shall a waiver by either party of the breach of any provision of
this Agreement be taken or held to be a waiver of any subsequent breach of such
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provision unless expressly so stated in writing. No waiver of any of the
provisions of this Agreement shall be effective unless in writing and signed by
the party to be charged.
16. Governing Law. This Agreement shall be governed by the laws of
the State of New York, without regard to conflict of laws principles applied in
the State of New York.
17. Headings. The headings to the Sections of this Agreement are for
convenience of reference only and shall not be given any effect in the
construction or interpretation of this Agreement.
18. Severability. If any provision of this Agreement is held by a
court or other authority having competent jurisdiction to be invalid, void or
otherwise unenforceable, in whole or in part, by reason of any applicable law,
statute or regulation or any interpretation thereof, then (a) the remainder of
the provisions of this Agreement shall remain in full force and effect and in no
way be affected, impaired or invalidated and (b) the provision so held to be
invalid, void or otherwise unenforceable shall be deemed modified in amount,
duration, scope or otherwise to the minimum extent necessary so that such
provision shall not be invalid, void or otherwise unenforceable by reason of
such law, statute, regulation or interpretation and such provision, as so
modified, shall remain in full force and effect.
19. Payment of Legal Fees. If any legal action or proceeding is
commenced to enforce or interpret the provisions of this Agreement, or to
recover damages for its breach, all reasonable legal fees, disbursements and
court costs paid or incurred by the Executive arising out of or resulting from
such action or proceeding shall be paid or reimbursed to the Executive by the
Bank, provided the Executive shall be the prevailing party in such action or
proceeding.
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20. Assumption by Company. This Agreement shall be assumable by the
Company at its election. Following any such election, the obligations of the
Bank under this Agreement shall become the obligations of the Company.
21. Taxes. Any payments due to the Executive pursuant to this
Agreement shall be reduced by all applicable federal, state, city or other taxes
required by law to be withheld with respect to such payments.
22. Limitation on Payments. Any payments made to the Executive
pursuant to this Agreement, or otherwise, are subject to and conditioned upon
their compliance with 12 USC ss. 1828(k) and any regulations promulgated
thereunder.
THE DIME SAVINGS BANK
OF NEW YORK, FSB
By: __________________________________
Name:
Title:
Dated: ___________________ __________________________________
XXXX X. XXXXX
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