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EXHIBIT 10.12
HOLDING COMPANY EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into as of June 1, 1999, by and between XXXXXX BANCORP, INC., a publicly held
business corporation organized and operating under the laws of the State of
Delaware and having an office at 00 Xxxx 000xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Holding Company") and XXXXXXX X. XXXXXX, an individual residing at 31 [Address
omitted] ("Executive").
W I T N E S S E T H :
WHEREAS, for purposes of securing the Executive's services for
the Holding Company, the Board of Directors of the Holding Company has approved
and authorized the execution of this Agreement with the Executive;
WHEREAS, Executive is willing to serve the Holding Company on
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and conditions hereinafter set forth, the Holding Company and
Executive hereby agree as follows:
SECTION 1. EMPLOYMENT.
The Holding Company agrees to employ Executive and Executive
hereby agrees to such employment, during the period and upon the terms and
conditions set forth in this Agreement.
SECTION 2. EMPLOYMENT PERIOD; REMAINING UNEXPIRED EMPLOYMENT
PERIOD.
(a) The terms and conditions of this Agreement shall be and
remain in effect during the period of employment established under this Section
2 ("Employment Period"). The Employment Period shall be for an initial term of
three years beginning on June 1, 1999 (the "Effective Date") and ending on the
third anniversary date of this Agreement, plus such extensions, if any, as are
provided pursuant to Sections 2(b) and (c). The Board shall review the
Executive's performance of services under this Agreement on an annual basis.
(b) Except as provided in Section 2(c), prior to the second
anniversary of the date of this Agreement and on each anniversary date
thereafter (each, an "Anniversary Date"), the Board shall review the terms of
this Agreement and the Executive's performance of services hereunder and may, in
the absence of objection from the Executive, approve a one-year extension of the
Employment Agreement. In such event, the Employment Agreement shall be extended
to the second anniversary of the relevant Anniversary Date. For all purposes of
this Agreement, the term "Remaining Unexpired Employment Period" as of any date
shall mean the period beginning on such date and ending on the Anniversary Date
on which the Employment Period (as extended pursuant to Section 2 of this
Agreement) is then scheduled to expire.
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(c) In the event of a Change in Control, as defined in Section
15 of this Agreement, Section 2(b) shall no longer be applicable, and,
notwithstanding any notice given pursuant to such Section 2(b), the Employment
Period shall be automatically extended to the third anniversary of the date on
which such Change in Control occurs, and shall be further extended automatically
for one (1) additional day each day following such Change in Control, unless
either Executive or the Holding Company elects not to extend the Employment
Period further by giving written notice to the other party, in which case the
Employment Period shall become fixed and shall end on the later of the last day
of the Employment Period specified in such notice or the third anniversary of
the date such written notice is given.
(d) Nothing in this Agreement shall be deemed to prohibit the
Holding Company at any time from terminating Executive's employment during the
Employment Period with or without prior notice for any reason; provided,
however, that the relative rights and obligations of the Holding Company and
Executive in the event of any such termination shall be determined under this
Agreement.
SECTION 3. DUTIES.
Executive shall serve as President and Chief Executive Officer
of the Holding Company, having such power, authority and responsibility,
including without limitation the power to hire and dismiss any employees of the
Holding Company, and performing such duties as are prescribed by or under the
By-Laws of the Holding Company and as are customarily associated with such
positions. Executive shall devote her full business time and attention (other
than during weekends, holidays, approved vacation periods, and periods of
illness or approved leaves of absence) to the business and affairs of the
Holding Company and shall use her best efforts to advance the interests of the
Holding Company.
SECTION 4. BASE SALARY.
In consideration for the services to be rendered by Executive
hereunder, the Holding Company shall pay to her a base salary at an initial
annual rate of Two Hundred and Thirty-Five Thousand Dollars ($235,000.00),
payable in approximately equal installments in accordance with the Holding
Company's customary payroll practices for senior officers. Each May prior to the
anniversary of the Effective Date of this Agreement occurring during the
Employment Period, the Board shall review Executive's annual rate of salary and
may, in its discretion, approve an increase therein.
SECTION 5. INCENTIVE COMPENSATION.
(a) Upon the Effective Date of this Agreement, the Executive
shall be granted incentive stock options under the Holding Company's 1995 Stock
Option Plan to purchase up to Thirty Thousand (30,000) shares of the Holding
Company's common stock, par value $.01 per share ("Options") at an exercise
price equal to the "Market Value" (as such term is defined in the 1995 Stock
Option Plan) of a share of the Holding Company's common stock on the date of
grant. Of the foregoing Option grant, Options granted with respect to the
purchase of Fifteen Thousand (15,000)
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shares of the Holding Company's common stock shall vest and become immediately
exercisable on the Effective Date and the balance of these Options shall vest
and become exercisable in equal installments over a three-year period, with Five
Thousand (5,000) Options becoming 100% vested and fully exercisable on the first
anniversary of the Effective Date and Five Thousand (5,000) additional Options
becoming 100% vested and fully exercisable on the second and third immediately
succeeding anniversaries of the Effective Date. The foregoing grant of Options
to the Executive (and all rights and privileges relating to such Options) shall
be memorialized in a written stock option agreement to be entered into by and
between the Holding Company and the Executive which shall be governed by, and
incorporate by reference, the terms and provisions of the Holding Company's 1995
Stock Option Plan and the terms of this Agreement, as applicable. In addition,
each May, prior to the anniversary of the Effective Date of this Agreement, the
Board shall review the Executive's performance under this Agreement and may, in
its discretion, grant additional stock option awards to the Executive under the
1995 Stock Option Plan; provided, however, that no fewer than Thirty Thousand
(30,000) Options shall be granted to the Executive on June 1, 2000 and such
Options shall vest in three annual installments on each anniversary of such
grant date. The Executive acknowledges and agrees that the grant of all
additional stock option awards may be subject to the approval of the Holding
Company's shareholders to the proposed amendment to the 1995 Option Plan to
increase its share reserve.
(b) The Executive shall also be eligible to receive an annual
incentive compensation payment ("Incentive Compensation Award") in a dollar
amount to be determined by the Board, in its discretion, based upon the
Executive's performance during the applicable Incentive Compensation Award
measurement period ("Measurement Period") agreed upon by the Board and the
Executive. The dollar amount of the Incentive Compensation Award payable to the
Executive with respect to the applicable Measurement Period shall be determined
by the Board in May of each year or as soon as practicable after the release of
the audited consolidated financial statements of the Holding Company and the
Bank. The Incentive Compensation Award shall be paid to the Executive (less all
applicable tax withholding) in a single sum cash payment as soon as
administratively feasible after the date the dollar amount of the Incentive
Compensation Award has been determined by the Board. The Board's determination
of the dollar amount of the Executive's Incentive Compensation Award shall be
based upon the Executive's attainment of one or more of the performance goal
categories ("Performance Goals") set forth in Appendix A hereof; provided,
however, the Holding Company and the Executive agree that the Performance Goals
contained in Appendix A are illustrative rather than exhaustive and are evidence
of the intent of the parties that the dollar amount of the Incentive
Compensation Award be based on the Board's evaluation of the Executive's
performance during the applicable Measurement Period. The attainment of
Performance Goals is expected to result in an Incentive Compensation Award in
the range of twenty percent (20%) to fifty percent (50%) of the Executive's base
salary, although the Board may, in its discretion, make an Incentive
Compensation Award outside of the aforementioned range.
(c) Upon the Effective Date of this Agreement, the Executive shall also
be granted a restricted stock award ("Restricted Stock Award") under the Holding
Company's Management Recognition Plan with respect to Seventy-Five Hundred
(7,500) shares of the Holding Company's common stock. The Restricted Stock Award
(and all rights and privileges relating to such Award) shall be memorialized in
a written Restricted Stock Award Notice and Agreement to be entered into between
the Holding Company and the Executive which shall be governed by, and
incorporate by reference, the terms and provisions of the Holding Company's
Management Recognition Plan and
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the terms of this Agreement, as applicable. The Restricted Stock Award shall
vest in equal installments over a three-year period, with Twenty-Five Hundred
(2,500) shares of the Restricted Stock Award becoming vested and distributable
to the Executive on each of the first, second and third immediately succeeding
anniversaries of the Effective Date of this Agreement; provided, however, the
Board shall have the discretion to accelerate the vesting of all or a portion of
the foregoing Restricted Stock Award based upon the Executive's attainment of
one or more of the Performance Goals set forth in Appendix A of this Agreement
during any applicable Measurement Period.
SECTION 6. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
During the Employment Period, Executive shall be treated as an
employee of the Holding Company and shall be entitled to participate in and
receive benefits under any and all qualified or non-qualified retirement,
pension, savings, profit-sharing or stock bonus plans, any and all group life,
health (including hospitalization, medical and major medical), dental, accident
and long term disability insurance plans, and any other employee benefit and
compensation plans (including, but not limited to, any incentive compensation
plans or programs, stock option and appreciation rights plans and restricted
stock plans) (collectively, "Benefit Plans") as may from time to time be
maintained by, or cover employees of, the Holding Company, in accordance with
the terms and conditions of such employee benefit plans and programs and
compensation plans and programs and consistent with the Holding Company's
customary practices. In addition, the Holding Company shall provide the
Executive, at the Holding Company's expense, with a term life insurance policy
in the amount of One Million Dollars ($1,000,000.00) that shall be payable to
the beneficiary designated by the Executive. Nothing paid to Executive under any
such plan or arrangement will be deemed to be in lieu of other compensation to
which Executive is entitled under this Agreement.
SECTION 7. SUPPLEMENTAL EXECUTIVE RETIREMENT BENEFITS.
Without limiting the generality of Section 6 hereof, in the
event that the amount of benefits or contributions Executive would have received
or accrued under the benefit formulas of the tax-qualified Benefit Plans of the
Holding Company is limited by Sections 401(a)(17), 401(k), 401(m), 402(g) or 415
of the Internal Revenue Code of 1986 ("Benefit Limitations"), the Holding
Company shall provide Executive with supplemental benefits equal to the benefits
attributable to employer contributions that she would have received if the
Benefit Limitations did not apply. Such supplemental benefits shall be provided
on a non-qualified, deferred compensation basis and shall be determined under
the benefit formulas and actuarial assumptions of the applicable Benefit Plans.
Payment of such supplemental benefits shall be made in the same manner and at
the same time as payment of Executive's benefits under the applicable Benefit
Plan.
SECTION 8. INDEMNIFICATION.
(a) During the Employment Period and for a period of six (6)
years thereafter, the Holding Company shall cause Executive to be covered by and
named as an insured under any policy or contract of insurance obtained by it to
insure its directors and officers against personal liability for acts or
omissions in connection with service as an officer or director of the Holding
Company
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or service in other capacities at the request of the Holding Company. The
coverage provided to Executive pursuant to this Section 8 shall be of the same
scope and on the same terms and conditions as the coverage (if any) provided to
other officers or directors of the Holding Company.
(b) To the maximum extent permitted under applicable law,
during the Employment Period and for a period of six (6) years thereafter, the
Holding Company shall indemnify Executive against and hold her harmless from any
costs, liabilities, losses and exposures to the fullest extent and on the most
favorable terms and conditions that similar indemnification is offered to any
director or officer of the Holding Company or any subsidiary or affiliate
thereof.
SECTION 9. OUTSIDE ACTIVITIES.
Executive may serve as a member of the boards of directors of
such business, community and charitable organizations as she may disclose to and
as may be approved by the Board (which approval shall not be unreasonably
withheld); provided, however, that such service shall not materially interfere
with the performance of her duties under this Agreement. Executive may also
engage in personal business and investment activities which do not materially
interfere with the performance of her duties hereunder; provided, however, that
such activities are not prohibited under any code of conduct or investment or
securities trading policy established by the Holding Company and generally
applicable to all similarly situated executives. Executive may also serve as an
officer or director of Xxxxxx Federal Savings Bank ("Bank"), a wholly owned
subsidiary of the Holding Company, on such terms and conditions as the Holding
Company and the Bank may mutually agree upon, and such service shall not be
deemed to materially interfere with Executive's performance of her duties
hereunder or otherwise result in a material breach of this Agreement. If
Executive is discharged or suspended, or is subject to any regulatory
prohibition or restriction with respect to participation in the affairs of the
Bank, she shall continue to perform services for the Holding Company in
accordance with this Agreement but shall not directly or indirectly provide
services to or participate in the affairs of the Bank in a manner inconsistent
with the terms of such discharge or suspension or any applicable regulatory
order.
SECTION 10. WORKING FACILITIES AND EXPENSES.
Executive's principal place of employment shall be at the
Holding Company's executive offices at the address first above written, or at
such other location within New York City at which the Holding Company shall
maintain its principal executive offices, or at such other location as the
Holding Company and Executive may mutually agree upon. The Holding Company shall
provide Executive at her principal place of employment with a private office,
secretarial services, reimbursement or direct payment for business-related car
expenses not to exceed Fifteen Hundred Dollars ($1,500.00) per month and other
support services and facilities suitable to her position with the Holding
Company and necessary or appropriate in connection with the performance of her
assigned duties under this Agreement. The Holding Company shall reimburse
Executive for her ordinary and necessary business expenses plus membership fees,
dues, capital contributions or such other business-related charges required for,
or related to, membership or participation in such clubs and organizations as
Executive and the Holding Company shall mutually agree are necessary and
appropriate for business purposes, and her travel and entertainment expenses
incurred in connec-
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tion with the performance of her duties under this Agreement, in each case upon
presentation to the Holding Company of an itemized account of such expenses in
such form as the Holding Company may reasonably require. The Holding Company
shall pay the reasonable legal fees and expenses of Xxxxxx & Xxxxxxx, counsel to
the Executive, in connection with the negotiation of this Agreement.
SECTION 11. TERMINATION OF EMPLOYMENT.
Executive shall be entitled to the severance benefits
described in Section 12 hereof in the event that her employment with the Holding
Company terminates during the Employment Period under any of the following
circumstances:
(a) prior to a Change in Control, as defined in Section 15
hereof:
(i) the termination by the Holding Company of
Executive's employment hereunder for any reason other than
Disability, as defined in Section 13 hereof, Retirement, as
defined in Section 14(d) hereof, or Cause, as defined in
Section 14(a) hereof; or
(ii) Executive's voluntary resignation from
employment with the Holding Company upon sixty (60) days
written notice given within six full calendar months
following:
(A) the failure of the Board to appoint or
reappoint or elect or re-elect Executive to the
office of President and Chief Executive Officer of
the Holding Company;
(B) the failure of the stockholders of the
Holding Company to elect or re-elect Executive to the
Board or the failure of the Board (or the nominating
committee thereof) to nominate Executive for such
election or re-election;
(C) the expiration of a thirty (30) day
period following the date on which Executive gives
written notice to the Holding Company of its material
failure, whether by amendment of the Holding
Company's Organization Certificate or By-laws,
action of the Board or the Holding Company's
stockholders or otherwise, to vest in Executive the
functions, duties, or responsibilities prescribed in
Section 3 of this Agreement, unless, during such
thirty (30) day period, the Holding Company cures
such failure in a manner determined by Executive, in
her discretion, to be satisfactory; or
(D) the expiration of a thirty (30) day
period following the date on which Executive gives
written notice to the Holding Company of its material
breach of any term,
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condition or covenant contained in this Agreement
(including, without limitation any reduction of
Executive's rate of base salary in effect from time
to time and any change in the terms and conditions of
any compensation or benefit program in which
Executive participates or a change in the Executive's
fringe benefits and perquisites which, either
individually or together with other changes, has a
material adverse effect on the aggregate value of her
total compensation package), unless, during such
thirty (30) day period, the Holding Company cures
such failure in a manner determined by Executive, in
her discretion, to be satisfactory; or
(E) the relocation of Executive's principle
place of employment by more than 30 miles from its
location at the effective date of this Agreement or
any change in working conditions at such principal
place of employment which Executive, in her
reasonable discretion, determines to be embarrassing,
derogatory or otherwise adverse; or
(b) subsequent to a Change in Control, as defined in Section
15, Executive's voluntary or involuntary resignation or the termination by the
Holding Company of Executive's employment hereunder, for any reason other than
death, Disability or Cause.
SECTION 12. SEVERANCE BENEFITS.
Upon the termination of Executive's employment with the
Holding Company under circumstances described in Section 11 of this Agreement,
the Holding Company shall pay and provide to Executive (or, in the event of her
death, to her estate):
(a) her earned but unpaid compensation (including, without
limitation, all items which constitute wages under Section 190.1 of the New York
Labor Law and the payment of which is not otherwise provided for under this
Section 12) as of the date of the termination of her employment with the
Holding Company, such payment to be made at the time and in the manner
prescribed by law applicable to the payment of wages but in no event later than
thirty (30) days after termination of employment;
(b) the benefits, if any, to which she is entitled as a former
employee under the Benefit Plans maintained for the benefit of the Holding
Company's officers and employees;
(c) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long term disability insurance
benefits and continued benefits under the term life insurance policy described
in Section 6, in addition to that provided pursuant to Section 12(b), and after
taking into account the coverage provided by any subsequent employer, if and to
the extent necessary to provide coverage for Executive and her family equivalent
to the coverage to which Executive would be entitled under the applicable
Benefit Plans (as in effect on the date of her termination of employment, or, if
her termination of employment occurs after a Change in Control,
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on the date of such Change in Control, whichever benefits are greater), if
Executive had continued working for the Holding Company during the Remaining
Unexpired Employment Period, and during such period, Executive received the
highest annual rate of compensation achieved during that portion of the
Employment Period prior to Executive's termination of employment, such benefits
to be provided without regard to whether Executive's continued participation in
the applicable Benefit Plans is prohibited during such period and to include
continuation coverage for Executive and members of her family following the
expiration of the Remaining Unexpired Employment Period equivalent to the
continuation coverage that they would be entitled to under the Consolidated
Omnibus Budget Reconciliation Act ("COBRA") if such benefits were provided under
the applicable Benefit Plans; and
(d) within thirty (30) days following her termination of
employment with the Holding Company, a lump sum payment, in an amount equal to
the present value of the salary that Executive would have earned if Executive
had continued working for the Holding Company during the Remaining Unexpired
Employment Period at the highest annual rate of salary achieved during that
portion of the Employment Period which is prior to Executive's termination of
employment with the Holding Company, where such present value is to be
determined using a discount rate equal to the applicable short-term federal rate
prescribed under Section 1274(d) of the Internal Revenue Code of 1986 ("Code"),
compounded using the compounding period corresponding to the Holding Company's
regular payroll periods for its officers;
(e) within thirty (30) days following her termination of
employment with the Holding Company, a lump sum payment in an amount equal to
the excess, if any, of:
(i) the present value of the aggregate benefits to
which Executive would be entitled under any and all qualified
and non-qualified defined benefit pension plans maintained by,
or covering employees of, the Holding Company, if Executive
were 100% vested thereunder and had continued working for the
Holding Company during the Remaining Unexpired Employment
Period, 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
Remaining Unexpired Employment Period and by adding to the
compensation recognized under such plans for the year in which
termination of employment occurs all amounts payable under
Sections 12(a), (d), (h), (i) and (j) which would be credited
under such plans had they been paid over the Remaining
Unexpired Employment Period; over
(ii) the present value of the benefits to which
Executive is actually entitled under such defined benefit
pension plans as of the date of her termination;
at where such present values are to be determined using the mortality
table ("Applicable Mortality Table") and interest rate ("Applicable
Interest Rate") prescribed under Section 417(e)(3) of the Code;
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(f) within thirty (30) days following her termination of
employment with the Holding Company, a lump sum payment in an amount equal to
the present value of the additional employer contributions to which Executive
would have been entitled under any and all qualified and non-qualified defined
contribution plans maintained by, or covering employees of, the Holding Company,
and if Executive were 100% vested thereunder and had continued working for the
Holding Company during the Remaining Unexpired Employment Period at the highest
annual rate of compensation achieved during that portion of the Employment
Period which is prior to Executive's termination of employment and making the
maximum amount of employee contributions, if any, required under such plan or
plans, such present value to be determined on the basis of a discount rate,
compounded using the compounding period that corresponds to the frequency with
which employer contributions are made to the relevant plan, equal to the
Applicable Interest Rate;
(g) within thirty (30) days following her termination of
employment with the Holding Company, a lump sum payment in an amount equal to
the fair market value (determined as of the date of her termination of
employment, or, if her termination of employment occurs after a Change in
Control, on the date of such Change in Control, whichever value is greater) of
any stock that would have been allocated or awarded to Executive under any and
all stock-based qualified or non-qualified employee benefit plan or plans
maintained by, or covering employees of, the Holding Company, if Executive were
100% vested thereunder and continued working for the Holding Company and during
the Remaining Unexpired Employment Period at the highest annual rate of
compensation achieved during that portion of the Employment Period which is
prior to Executive's termination of employment;
(h) the payments that would have been made to Executive under
any cash bonus or long-term or short-term cash incentive compensation plan
maintained by, or covering employees of, the Holding Company if Executive had
continued working for the Holding Company during the Remaining Unexpired
Employment Period and had earned the maximum bonus or incentive award in each
calendar year that ends during the Remaining Unexpired Employment Period, such
payments to be equal to the product of:
(A) the maximum percentage rate at which an award was
ever available to Executive under such incentive compensation
plan; multiplied by
(B) the salary that would have been paid to Executive
during each such calendar year at the highest annual rate of
salary achieved during that portion of the Employment Period
which is prior to Executive's termination of employment with
the Holding Company:
such payments to be made (without discounting for early payment) within thirty
(30) days following Executive's termination of employment;
(i) at the election of Executive made within thirty (30) days
following her termination of employment, upon the surrender of options
or appreciation rights issued to Executive under any stock option and
appreciation rights plan or program maintained by, or covering
employees of, the Holding Company, a lump sum payment in an amount
equal to the product of:
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(i) the excess of (A) the fair market value of a
share of stock of the same class as the stock subject to the
option or appreciation right, determined as of the date of
termination of employment, over (B) the exercise price per
share for such option or appreciation right, as specified in
or under the relevant plan or program; multiplied by
(ii) the number of shares with respect to which
options or appreciation rights are being surrendered.
For purposes of this Section 12(i) and for purposes of determining Executive's
right following her termination of employment with the Holding Company to
exercise any options or appreciation rights not surrendered pursuant hereto,
Executive shall be deemed fully vested in all options and appreciation rights
under any stock option or appreciation rights plan or program maintained by, or
covering employees of, the Holding Company, even if Executive is not vested
under such plan or program;
(j) at the election of the Executive made within thirty (30)
days following Executive's termination of employment, upon the
surrender of any shares awarded to Executive under any restricted stock
plan maintained by, or covering employees of, the Holding Company or
the Bank, a lump sum payment in an amount equal to the product of:
(i) the fair market value of a share of stock of the
same class of stock granted under such plan, determined as of
the date of Executive's termination of employment; multiplied
by
(ii) the number of shares which are being
surrendered.
For purposes of this Section 12(j) and for purposes of determining Executive's
right following her termination of employment with the Holding Company to any
stock not surrendered pursuant hereto, Executive shall be deemed fully vested in
all shares awarded under any restricted stock plan maintained by, or covering
employees of, the Holding Company, even if she is not vested under such plan;
(k) within thirty (30) days following her termination of
employment with the Holding Company, a lump sum payment in an amount equal to
the present value of the additional benefits to which Executive would have been
entitled under Section 7 of this Agreement if Executive had continued working
for the Holding Company during the Remaining Unexpired Employment Period at the
highest annual rate of salary achieved during that portion of the Employment
Period which is prior to Executive's termination of employment, where such
present value is to be determined using the Applicable Mortality Table and
Applicable Interest Rate and assuming that the Benefit Limitations as in effect
at the time of Executive's termination remained in effect during the Remaining
Unexpired Employment Period.
The Holding Company and Executive hereby stipulate that the damages which may be
incurred by Executive following any such termination of employment under the
circumstances described in Section 11 of this Agreement are not capable of
accurate measurement as of the date first above written and that the payments
and benefits contemplated by this Section 12 constitute reasonable
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damages under the circumstances and shall be payable without any requirement of
proof of actual damage and without regard to Executive's efforts, if any, to
mitigate damages.
SECTION 13. TERMINATION FOR DISABILITY.
(a) If, as a result of Executive's incapacity due to physical
or mental illness, she shall have been absent from her duties with the Holding
Company on a full-time basis for six (6) consecutive months, and within thirty
(30) days after written notice of potential termination is given she shall not
have returned to the full-time performance of her duties, the Holding Company
may terminate Executive's employment for "Disability" and Executive shall be
entitled to the payments and benefits provided for under Sections 13(b) and (c).
For purposes of this Section 13(a), "Disability" shall have the meaning set
forth in the group long-term disability policy or plan maintained by the Holding
Company for employees as in effect on the effective date of this Agreement, or
if no plan or policy is maintained on such date, "Disability" shall mean a
condition of total incapacity, mental or physical, for the performance of
Executive's stated duties hereunder, which incapacity shall have been
determined, by a doctor selected by the Holding Company and acceptable to
Executive or her legal representatives, is likely to be permanent.
(b) The Holding Company will pay Executive, as disability pay,
three-quarters (3/4) of Executive's rate of salary as in effect pursuant to
Section 4 on the effective date of such termination, payable in approximately
equal installments in accordance with the Holding Company's customary payroll
practices. These disability payments shall commence on the effective date of
Executive's termination and will end on the earlier of (i) the date Executive
returns to the full-time employment of the Holding Company in the same capacity
as she was employed prior to her termination for Disability and pursuant to an
employment agreement between Executive and the Holding Company; (ii) Executive's
full-time employment by another employer; (iii) Executive attaining the age of
65; (iv) Executive's death; or (v) the expiration of the term of this Agreement.
The disability pay shall be reduced by the amount, if any, paid to Executive
under any plan of the Holding Company providing disability benefits to
Executive.
(c) The Holding Company will cause to be continued life,
medical, dental and disability coverage substantially identical to the coverage
maintained by it for Executive prior to her termination for Disability. This
coverage and payments shall cease upon the earlier of (i) the date Executive
returns to the full-time employment of the Holding Company, in the same capacity
as she was employed prior to her termination of Disability and pursuant to an
employment agreement between Executive and the Holding Company; (ii) Executive's
full-time employment by another employer; (iii) Executive's attaining the age of
65; (iv) Executive's death; or (v) the expiration of the term of this Agreement.
(d) Notwithstanding the foregoing, there will be no reduction
in the compensation otherwise payable to Executive during any period during
which Executive is incapable of performing her duties hereunder by reason of
temporary disability.
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SECTION 14. TERMINATION WITHOUT ADDITIONAL HOLDING COMPANY
LIABILITY.
In the event that Executive's employment with the Holding
Company shall terminate during the Employment Period on account of:
(a) the discharge of Executive 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 this Agreement, in such case as
measured against standards generally prevailing at the relevant time in the
savings and community banking industry; provided, however, that the Executive
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 the
Executive and a reasonable opportunity for the Executive 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 the Executive for Cause; or
(b) Executive's voluntary resignation from employment with the
Holding Company for reasons other than those specified in Section 11; or
(c) Executive's death; or
(d) Executive's "Retirement," which, for purposes of this
Agreement shall mean her voluntary termination at a time when she is eligible
for a normal retirement benefit under the qualified defined benefit pension plan
or plans of the Holding Company, or if no such plan is currently maintained,
Executive's voluntary termination at or after the attainment of age 65;
then the Holding Company shall have no further obligations under this Agreement,
other than the payment to Executive (or, in the event of her death, to her
estate) of her earned but unpaid salary and, in the event of the Executive's
death or Retirement, her earned but unpaid Incentive Compensation Award, as of
the date of the termination of her employment, and the provision of such other
benefits, if any, to which she is entitled as a former employee under the
employee benefit plans and programs and compensation plans and programs
maintained by, or covering employees of, the Holding Company.
SECTION 15. CHANGE IN CONTROL.
A Change in Control in the Holding Company ("Change in
Control") shall be deemed to have occurred upon the happening of any of the
following events:
(a) approval by the stockholders of the Holding Company of a
transaction that would result in the reorganization, merger or
consolidation of the Holding Company, respectively, with one or more
other persons, other than a transaction following which:
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13
(i) at least fifty-one percent (51%) of the equity
ownership interests of the entity resulting from such
transaction are beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) in substantially the
same relative proportions by persons who, immediately prior to
such transaction, beneficially owned (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) at least
fifty-one percent (51%) of the outstanding equity ownership
interests in the Holding Company; and
(ii) at least fifty-one percent (51%) of the
securities entitled to vote generally in the election of
directors of the entity resulting from such transaction are
beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) in substantially the same
relative proportions by persons who, immediately prior to such
transaction, beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) at least fifty-one
percent (51%) of the securities entitled to vote generally in
the election of directors of the Holding Company;
(b) the acquisition of all or substantially all of the assets
of the Holding Company or beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty percent (20%) or more of the
outstanding securities of the Holding Company entitled to vote generally in the
election of directors by any person or by any persons acting in concert, or
approval by the stockholders of the Holding Company of any transaction which
would result in such an acquisition;
(c) a complete liquidation or dissolution of the Holding
Company, or approval by the stockholders of the Holding Company of a plan for
such liquidation or dissolution;
(d) the occurrence of any event if, immediately following such
event, at least fifty percent (50%) of the members of the Board of the Holding
Company do not belong to any of the following groups:
(i) individuals who were members of the Board of the
Holding Company on the date of this Agreement; or
(ii) individuals who first became members of the
Board of the Holding Company after the date of this Agreement
either:
(A) upon election to serve as a member of
the Board of directors of the Holding Company by
affirmative vote of three-quarters of the members of
such Board, or of a nominating committee thereof, in
office at the time of such first election; or
(B) upon election by the stockholders of the
Holding Company to serve as a member of the Board,
but only if nominated for election by affirmative
vote of three-quarters of the members of the Board,
or of a nominating committee thereof, in office at
the time of such first nomination;
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14
provided, however, that such individual's election or nomination did not result
from an actual or threatened election contest (within the meaning of Rule 14a-11
of Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents (within the meaning of Rule
14a-11 of Regulation 14A promulgated under the Exchange Act) other than by or on
behalf of the Board of the Holding Company; or
(e) any event which would be described in Section 15(a), (b),
(c) or (d) if the term "Bank" were substituted for the term "Holding Company"
therein.
In no event, however, shall a Change in Control be deemed to have occurred as a
result of any acquisition of securities or assets of the Holding Company, the
Bank, or a subsidiary of either of them, by the Holding Company, the Bank, or a
subsidiary of either of them, or by any employee benefit plan maintained by any
of them. For purposes of this Section 15, the term "person" shall have the
meaning assigned to it under Section 13(d)(3) or 14(d)(2) of the Exchange Act.
SECTION 16. TAX INDEMNIFICATION.
(a) This Section 16 shall apply if Executive's employment is
terminated upon or following (i) a Change in Control (as defined in Section 15
of this Agreement); or (ii) a change "in the ownership or effective control" of
the Holding Company or the Bank or "in the ownership of a substantial portion of
the assets" of the Holding Company or the Bank within the meaning of Section
280G of the Code. If this Section 16 applies, then, if for any taxable year,
Executive shall be liable for the payment of an excise tax under Section 4999 of
the Code with respect to any payment in the nature of compensation made by the
Holding Company, the Bank or any direct or indirect subsidiary or affiliate of
the Holding Company or the Bank to (or for the benefit of) Executive, the
Holding Company shall pay to Executive an amount equal to X determined under the
following formula:
X = E x P
------------------------------------
1 - [(FI x (1 - SLI)) + SLI + E + M]
where
E = the rate at which the excise tax is assessed under
Section 4999 of the Code;
P = the amount with respect to which such excise tax is
assessed, determined without regard to this Section
15;
FI = the highest marginal rate of income tax applicable to
Executive under the Code for the taxable year in
question;
SLI = the sum of the highest marginal rates of income tax
applicable to Executive under all applicable state
and local laws for the taxable year in question; and
M = the highest marginal rate of Medicare tax
applicable to Executive under the Code for the
taxable year in question.
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15
With respect to any payment in the nature of compensation that
is made to (or for the benefit of) Executive under the terms of this Agreement,
or otherwise, and on which an excise tax under Section 4999 of the Code will be
assessed, the payment determined under this Section 16(a) shall be made to
Executive on the earlier of (i) the date the Holding Company, the Bank or any
direct or indirect subsidiary or affiliate of the Holding Company or the Bank is
required to withhold such tax, or (ii) the date the tax is required to be paid
by Executive.
(b) Notwithstanding anything in this Section 16 to the
contrary, in the event that Executive's liability for the excise tax under
Section 4999 of the Code for a taxable year is subsequently determined to be
different than the amount determined by the formula (X + P) x E, where X, P and
E have the meanings provided in Section 16(a), Executive or the Holding Company,
as the case may be, shall pay to the other party at the time that the amount of
such excise tax is finally determined, an appropriate amount, plus interest,
such that the payment made under Section 16(a), when increased by the amount of
the payment made to Executive under this Section 16(b) by the Holding Company,
or when reduced by the amount of the payment made to the Holding Company under
this Section 16(b) by Executive, equals the amount that should have properly
been paid to Executive under Section 16(a). The interest paid under this Section
16(b) shall be determined at the rate provided under Section 1274(b)(2)(B) of
the Code. To confirm that the proper amount, if any, was paid to Executive under
this Section 16, Executive shall furnish to the Holding Company a copy of each
tax return which reflects a liability for an excise tax payment made by the
Holding Company, at least 20 days before the date on which such return is
required to be filed with the Internal Revenue Service.
SECTION 17. COVENANT NOT TO COMPETE.
Executive hereby covenants and agrees that, in the event of
her termination of employment with the Holding Company prior to the expiration
of the Employment Period for any reason other than the circumstances provided
under Section 11 hereof, for a period of one (1) year following the date of her
termination of employment with the Holding Company (or, if less, for the
Remaining Unexpired Employment Period), she shall not, without the written
consent of the Holding Company, become an officer, employee, consultant,
director or trustee of any savings bank, savings and loan association, savings
and loan holding company, bank or bank holding company, or any direct or
indirect subsidiary or affiliate of any such entity, that competes with the
business of the Holding Company in any city, town or county in which the Holding
Company has an office or has filed an application for regulatory approval to
establish an office as of the date of Executive's termination of employment;
provided, however, that if Executive's employment shall be terminated on account
of Disability as provided in Section 13 of this Agreement, this Section 17 shall
not prevent Executive from accepting any position or performing any services if
(a) she first offers, by written notice, to accept a similar position with, or
perform similar services for, the Holding Company on substantially the same
terms and conditions and (b) the Holding Company declines to accept such offer
within ten (10) days after such notice is given.
SECTION 18. CONFIDENTIALITY.
Unless she obtains the prior written consent of the Holding
Company, Executive shall keep confidential and shall refrain from using for the
benefit of herself, or any person or entity other
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16
than the Holding Company or any entity which is a subsidiary of the Holding
Company or of which the Holding Company is a subsidiary, any material document
or information obtained from the Holding Company, or from its parent or
subsidiaries, in the course of her employment with any of them concerning their
properties, operations or business (unless such document or information is
readily ascertainable from public or published information or trade sources or
has otherwise been made available to the public through no fault of her own)
until the same ceases to be material (or becomes so ascertainable or available);
provided, however, that nothing in this Section 18 shall prevent Executive, with
or without the Holding Company's consent, from participating in or disclosing
documents or information in connection with any judicial or administrative
investigation, inquiry or proceeding to the extent that such participation or
disclosure is required under applicable law.
SECTION 19. NO EFFECT ON EMPLOYEE BENEFIT PLANS OR PROGRAMS.
The termination of Executive's employment during the term of
this Agreement or thereafter, whether by the Holding Company or by Executive,
shall have no effect on the rights and obligations of the parties hereto under
the Holding Company's qualified or non-qualified retirement, pension, savings,
thrift, profit-sharing or stock bonus plans, group life, health (including
hospitalization, medical and major medical), dental, accident and long term
disability insurance plans or such other employee benefit plans or programs, or
compensation plans or programs, as may be maintained by, or cover employees of,
the Holding Company from time to time.
SECTION 20. SUCCESSORS AND ASSIGNS.
This Agreement will inure to the benefit of and be binding
upon Executive, her legal representatives and testate or intestate distributees,
and the Holding Company and its successors and assigns, including any successor
by merger or consolidation or a statutory receiver or any other per son or firm
or corporation to which all or substantially all of the assets and business of
the Holding Company may be sold or otherwise transferred. Failure of the Holding
Company to obtain from any successor its express written assumption of the
Holding Company's obligations hereunder at least sixty (60) days in advance of
the scheduled effective date of any such succession shall be deemed a material
breach of this Agreement.
SECTION 21. 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 (5) days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
If to Executive:
Xxxxxxx X. Xxxxxx
[ADDRESS OMITTED]
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with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
If to the Holding Company:
Xxxxxx Bancorp, Inc.
00 Xxxx 000xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chairman of the Compensation Committee
of the Board of Directors
with a copy to:
Xxxxxxx Xxxxxxxx & Wood
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx, Esq.
SECTION 22. INDEMNIFICATION FOR ATTORNEYS' FEES.
The Holding Company shall indemnify, hold harmless and defend
Executive against reasonable costs, including legal fees, incurred by her 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, however, that Executive shall have
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. For purposes of this Agreement, any settlement
agreement which provides for payment of any amounts in settlement of the Holding
Company's obligations hereunder shall be conclusive evidence of Executive's
entitlement to indemnification hereunder, and any such indemnification payments
shall be in addition to amounts payable pursuant to such settlement agreement,
unless such settlement agreement expressly provides otherwise.
SECTION 23. 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.
SECTION 24. 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
Page 17 of 22
18
whom its enforcement is sought. Any waiver or relinquishment of any right or
power hereunder 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.
SECTION 25. COUNTERPARTS.
This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
SECTION 26. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced
in accordance with the federal laws of the United States and, to the extent that
federal law is inapplicable, in accordance with the laws of the State of New
York applicable to contracts entered into and to be performed entirely within
the State of New York.
SECTION 27. 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.
SECTION 28. 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. No modifications of this Agreement shall be valid unless made in
writing and signed by the parties hereto.
SECTION 29. GUARANTEE.
The Holding Company hereby agrees to guarantee the payment by
the Bank of any benefits and compensation to which Executive is or may be
entitled to under the terms and conditions of the employment agreement dated as
of June 1, 1999, by and between the Bank and Executive, a copy of which is
attached hereto as Exhibit A ("Bank Agreement").
SECTION 30. NON-DUPLICATION.
In the event that Executive shall perform services for the
Bank or any other direct or indirect subsidiary of the Holding Company, any
compensation or benefits provided to Executive by such other employer shall be
applied to offset the obligations of the Holding Company hereunder, it being
intended that this Agreement set forth the aggregate compensation and benefits
payable to Executive for all services to the Holding Company and all of its
direct or indirect subsidiaries.
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SECTION 31. REQUIRED REGULATORY PROVISIONS.
Notwithstanding anything herein contained to the contrary, any
payments to Executive by the Holding Company, whether pursuant to this Agreement
or otherwise, are subject to and conditioned upon their compliance with Section
18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and any
regulations promulgated thereunder.
Page 19 of 22
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IN WITNESS WHEREOF, the Holding Company has caused this
Agreement to be executed and Executive has hereunto set her hand, all as of the
day and year first above written.
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
XXXXXXX X. XXXXXX
ATTEST: XXXXXX BANCORP, INC.
By
-------------------------------------
Secretary By /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Chairman of the Board
[Seal]
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[Notary page intentionally omitted]
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[Appendix A intentionally omitted]
Page 22 of 22
