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Exhibit 10.9
AMENDED AND RESTATED BANK EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
April 1, 1997, by and between XXXXXX FEDERAL SAVINGS BANK, a savings bank
organized and operating under the federal laws of the United States and having
an office at 00 Xxxx 000xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Bank") and XXXXXX
X. XXXXX, XX., an individual residing at 00 Xxxx Xxxx, Xxxxx Xxxxxx, Xxx Xxxx
00000 ("Executive").
WITNESSETH:
WHEREAS, Executive currently serves the Bank in the capacity of
President and Chief Executive Officer and as a member of the Board of Directors
of the Bank ("Board"); and
WHEREAS, the Bank and the Executive are parties to an Employment
Agreement made and entered into as of January 3, 1995 ("Prior Agreement"); and
WHEREAS, the Bank and the Executive desire to amend and restate the
Prior Agreement in its entirety as set forth herein; and
WHEREAS, for purposes of securing the Executive's services for the
Bank, the Board has approved and authorized the execution of this Agreement with
the Executive; and
WHEREAS, the Executive is willing to continue to serve the Bank 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 Bank and Executive hereby
agree as follows:
SECTION 1. EMPLOYMENT.
The Bank agrees to continue to employ Executive, and Executive hereby
agrees to such continued 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 the date of this Agreement. Prior to the first
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
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objection from the Executive, approve an extension of the Employment Agreement.
In such event, the Employment Agreement shall be extended to the third
anniversary of the relevant Anniversary Date.
(b) 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(a) of this Agreement) is then scheduled to expire.
(c) Nothing in this Agreement shall be deemed to prohibit the Bank at
any time from terminating Executive's employment during the Employment Period
with or without notice for any reason; provided, however, that the relative
rights and obligations of the Bank 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
Bank, and as a member of the Board, having such power, authority and
responsibility and performing such duties as are prescribed by or under the
By-Laws of the Bank and as are customarily associated with such positions.
Executive shall devote his 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 Bank and shall
use his best efforts to advance the interests of the Bank.
SECTION 4. CASH COMPENSATION.
In consideration for the services to be rendered by Executive
hereunder, the Bank shall pay to Executive a salary at an initial annual rate of
TWO HUNDRED THOUSAND DOLLARS ($200,000.00) payable in approximately equal
installments in accordance with the Bank's customary payroll practices for
senior officers. Each February, prior to each Anniversary Date occurring during
the Employment Period, the Board shall review Executive's annual rate of salary
and may, in its discretion, approve an increase therein. In addition to salary,
Executive may receive other cash compensation from the Bank for services
hereunder at such times, in such amounts and on such terms and conditions, as
the Board may determine from time to time.
SECTION 5. EMPLOYEE BENEFIT PLANS AND PROGRAMS.
During the Employment Period, Executive shall be treated as an employee
of the Bank 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
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appreciation rights plans and restricted stock plans) (collectively, "Benefit
Plans") as may from time to time be maintained by, or cover employees of, the
Bank, in accordance with the terms and conditions of such employee benefit plans
and programs and compensation plans and programs and consistent with the Bank's
customary practices. Nothing paid to the Executive under any such plan or
arrangement will be deemed to be in lieu of other compensation to which the
Executive is entitled under this Agreement.
SECTION 6. SUPPLEMENTAL EXECUTIVE RETIREMENT BENEFITS.
Without limiting the generality of Section 5 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 Bank is
limited by Sections 401(a)(17), 401(k)(3), 401(m), 402(g) or 415 of the Internal
Revenue Code of 1986 ("Benefit Limitations"), the Bank shall provide Executive
with supplemental benefits equal to the benefits attributable to employer
contributions that he 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 the Executive's benefits under the applicable Benefit Plan.
SECTION 7. INDEMNIFICATION.
(a) During the Employment Period and for a period of six (6) years
thereafter, the Bank shall cause Executive to be covered by and named as an
insured under any policy or contract of insurance obtained by it to insure
directors and officers against personal liability for acts or omissions in
connection with service as an officer or director of the Bank, or service in
other capacities at the request of the Bank. The coverage provided to Executive
pursuant to this Section 7 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 Bank.
(b) To the maximum extent permitted under applicable law, during the
Employment Period and for a period of six (6) years thereafter, the Bank shall
indemnify Executive against and hold Executive 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 Bank or affiliate thereof. This Section 7(b) shall
not be applicable where Section 21 is applicable.
SECTION 8. OUTSIDE ACTIVITIES.
Executive may serve as a member of the boards of directors of such
business, community and charitable organizations as Executive 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 his duties under this Agreement. Executive may also
engage in personal business and investment activities which do not materially
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interfere with the performance of his duties hereunder; provided, however, that
such activities are not prohibited under any code of conduct or investment or
securities trading policy established by the Bank and generally applicable to
all similarly situated executives. The Executive may also serve as an officer or
director of the Bank's holding company, Xxxxxx Bancorp, Inc. ("Holding Company")
on such terms and conditions as the Bank and the Holding Company may mutually
agree upon, and such service shall not be deemed to materially interfere with
the Executive's performance of his duties hereunder or otherwise to result in a
material breach of this Agreement.
SECTION 9. WORKING FACILITIES AND EXPENSES.
Executive's principal place of employment shall be at the Bank's
executive offices at the address first above written, or at such other location
within New York City at which the Bank shall maintain its principal executive
offices, or at such other location as the Bank and Executive may mutually agree
upon. The Bank shall provide Executive at his principal place of employment with
a private office, secretarial services, an automobile, and other support
services and facilities suitable to his position with the Bank and necessary or
appropriate in connection with the performance of his assigned duties under this
Agreement. The Bank shall reimburse Executive for his ordinary and necessary
business expenses, including, without limitation, all expenses associated with
his business use of the aforementioned automobile, 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 Bank shall mutually agree are necessary and appropriate for
business purposes, and his travel and entertainment expenses incurred in
connection with the performance of his duties under this Agreement, in each case
upon presentation to the Bank of an itemized account of such expenses in such
form as the Bank may reasonably require.
SECTION 10. TERMINATION OF EMPLOYMENT.
Executive shall be entitled to the severance benefits described in
Section 11 hereof in the event that his employment with the Bank terminates
during the Employment Period under any of the following circumstances:
(a) prior to a Change in Control, as defined in Section 14 hereof:
(i) the termination by the Bank of the Executive's employment
hereunder for any reason other than Disability, as defined in Section
12 hereof, Retirement, as defined in Section 13(d) hereof, or Cause, as
defined in Section 13(a) hereof; or
(ii) Executive's voluntary resignation from employment with the
Bank upon (60) days written notice given within six full calendar
months following:
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(A) the failure of the Board to appoint or re-appoint or
elect or re-elect Executive to the office of President and Chief
Executive Officer of the Bank or the failure of the Board to
appoint or re-appoint or elect or re-elect Executive to the office
of President and Chief Executive Officer of the Bank; or
(B) the failure of the stockholders of the Bank to elect or
re-elect Executive as a member of the Board, or the failure of the
Board (or the nominating committee thereof) to nominate Executive
for such election or re-election; or
(C) the expiration of a thirty (30) day period following
the date on which Executive gives written notice to the Bank of
its the material failure, whether by amendment of the Bank's
Federal Stock Charter or By-laws, action of the Board, or the
Bank's stockholders or otherwise, to vest in Executive the
functions, duties, or responsibilities attributable to the
positions described in Section 3 of this Agreement, unless, during
such thirty (30) day period, the Bank cures such failure in a
manner determined by Executive, in his 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 Bank of
its material breach of any term, condition or covenant contained
in this Agreement (including, without limitations, any reduction
of Executive's rate of base salary in effect from time to time,
any change in the terms and conditions of any compensation or
benefit program in which Executive participates, or change in
Executive's fringe benefits and perquisites, which, either
individually or together with other changes, has a material
adverse effect on the aggregate value of his total compensation
package), unless, during such thirty (30) day period, the Bank
cures such failure in a manner determined by Executive, in his
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 his reasonable discretion, determines to be embarrassing,
derogatory or otherwise adverse; or
(b) subsequent to a Change in Control, as defined in Section 14,
Executive's voluntary or involuntary resignation or the termination by the Bank
of Executive's employment hereunder, for any reason, other than death,
Disability or Cause, then subject to Section 27, the Bank shall provide the
benefits and pay to the Executive the amounts described in Section 11.
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SECTION 11. SEVERANCE BENEFITS.
Upon the termination of Executive's employment with the Bank under the
circumstances described in Section 10 of this Agreement, the Bank shall pay and
provide to Executive (or, in the event of his death following his termination of
employment, to his estate):
(a) his 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 11) as of the date of the termination of his employment with the
Bank, 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 Executive is entitled as a former
employee under the Benefit Plans maintained by the Bank for their officers
and employees;
(c) continued group life, health (including hospitalization, medical
and major medical), dental, accident and long term disability insurance
benefits, in addition to that provided pursuant to Section 11(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 his family
equivalent to the coverage to which Executive would be entitled under the
applicable Benefit Plans (as in effect on the date of his termination of
employment, or, if his termination of employment occurs after a Change in
Control, on the date of such Change in Control, whichever benefits are
greater), if Executive had continued working for the Bank 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 Executive's 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 his termination of employment
with the Bank, 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 Bank 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
Bank, 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
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Revenue Code of 1986 ("Code"), compounded using the compounding period
corresponding to the Bank's regular payroll periods for its officers;
(e) within thirty (30) days following his termination of employment
with the Bank, 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 Bank, if Executive were 100% vested thereunder and
had continued working for the Bank 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 including in the compensation recognized under
such plans all amounts payable under Sections 11(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 his termination;
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;
(f) within thirty (30) days following his termination of employment
with the Bank, 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 Bank, and if Executive
were 100% vested thereunder and had continued working for the Bank and the
Bank 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 his termination of employment with
the Bank, a lump sum payment in an amount equal to the fair market value
(determined as of the date of his termination of employment, or, if his
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-
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qualified employee benefit plan or plans maintained by, or covering
employees of, the Bank, if Executive were 100% vested thereunder and
continued working for the Bank 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 the 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 Bank if Executive had continued working
for the Bank 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 Bank:
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 his 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 Bank, a lump sum payment in an amount equal to the product of:
(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 11(i) and for purposes of determining
Executive's right following his termination of employment with the Bank 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 Bank, even if Executive is not
vested under such plan or program;
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(j) at the election of 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 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 11(j) and for purposes of determining
Executive's right following his termination of employment with the Bank 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 Bank, even if Executive is not vested under
such plan;
(k) within thirty (30) days following his termination of employment
with the Bank, a lump sum payment in an amount equal to the present value of
the additional benefits to which the Executive would have been entitled
under Section 6 of this Agreement if Executive had continued working for the
Bank 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 Bank and Executive hereby stipulate that the damages which may be incurred
by Executive following any termination of employment under the circumstances
described in Section 10 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 11 constitute reasonable 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.
The Bank and the Executive further agree that the Bank may condition the payment
and benefits (if any) due under Sections 11(c), (d), (e), (f), and (h) on the
receipt of the Executive's resignation from any and all positions which he holds
as an officer, director or committee member with respect to the Bank, the
Holding Company, or any subsidiary or affiliate of either of them.
SECTION 12. TERMINATION FOR DISABILITY.
(a) If, as a result of Executive's incapacity due to physical or
mental illness, he shall have been absent from his duties with the Bank on a
full-time basis for six (6) consecutive months, and within thirty (30) days
after written notice of potential termination is
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given he shall not have returned to the full-time performance of his duties, the
Bank may terminate Executive's employment for "Disability" and he shall be
entitled to the payments and benefits provided for under Sections 12(b) and (c).
For purposes of this Section 12(a), "Disability" shall have the same meaning set
forth in the group long-term disability policy or plan maintained by the Bank
for employees as in effect on the effective date of this Agreement, or if no
such plan or policy is maintained on such date, "Disability" shall mean a
condition of total incapacity, mental or physical, for the performance of the
Executive's stated duties hereunder, which incapacity shall have been
determined, by a doctor selected by the Bank and acceptable to the Executive or
his legal representatives, is likely to be permanent.
(b) The Bank 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 Bank'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 Bank in the same capacity as he was employed prior to his
termination for Disability and pursuant to an employment agreement between
Executive and the Bank; (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 the Executive under any plan of the Bank
providing disability benefits to the Executive.
(c) The Bank will cause to be continued life, medical, dental and
disability coverage substantially identical to the coverage maintained by the
Bank for Executive prior to his 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 Bank, in the same capacity as he was employed prior
to his termination for Disability and pursuant to an employment agreement
between Executive and the Bank; (ii) Executive's full-time employment by another
employer; (iii) Executive's attaining the age of 65; (iv) the 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 his duties hereunder by reason of temporary
disability.
SECTION 13. TERMINATION WITHOUT ADDITIONAL BANK LIABILITY.
In the event that Executive's employment with the Bank 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
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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 he 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 his own behalf, or through a
representative, who may be his 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 Bank
for reasons other than those specified in Section 10;
(c) Executive's death; or
(d) Executive's "Retirement," which, for purposes of this Agreement,
shall mean Executive's voluntary termination at a time when he is eligible
for a normal retirement benefit under the qualified defined benefit pension
plan or plans of the Bank or the Bank, or if no such plan is currently
maintained, the Executive's voluntary termination at or after the attainment
of age 65;
then the Bank shall have no further obligations under this Agreement, other than
the payment to Executive (or, in the event of his death, to his estate) of his
earned but unpaid salary as of the date of the termination of his employment,
and the provision of such other benefits, if any, to which Executive 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
Bank.
SECTION 14. CHANGE IN CONTROL.
A Change in Control of the Bank ("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 Bank of a transaction that
would result in the reorganization, merger or consolidation of the Bank,
respectively, with one or more other persons, other than a transaction
following which:
(i) at least 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 51% of the
outstanding equity ownership interests in the Bank; and
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(ii) at least 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 51% of the securities entitled to vote generally in the
election of directors of the Bank;
(b) the acquisition of all or substantially all of the assets of the
Bank or beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of the outstanding securities of the
Bank 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
Bank of any transaction which would result in such an acquisition;
(c) a complete liquidation or dissolution of the Bank, or approval by
the stockholders of the Bank of a plan for such liquidation or dissolution;
(d) the occurrence of any event if, immediately following such event,
at least 50% of the members of the Board do not belong to any of the
following groups:
(i) individuals who were members of the Board on the date of this
Agreement; or
(ii) individuals who first became members of the Board after the
date of this Agreement either:
(A) upon election to serve as a member of the Board 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 Bank 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;
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; or
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(e) any event which would be described in Section 14(a), (b), (c) or
(d) if the term "Holding Company" were substituted for the term "Bank"
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 Bank, the Holding
Company, or a subsidiary of either of them, by the Bank, the Holding Company, or
a subsidiary of either of them, or by any employee benefit plan maintained by
any of them. For purposes of this Section 14, the term "person" shall have the
meaning assigned to it under Section 13(d)(3) or 14(d)(2) of the Exchange Act.
SECTION 15. COVENANT NOT TO COMPETE.
Executive hereby covenants and agrees that, in the event of his
termination of employment with the Bank prior to the expiration of the
Employment Period for any reason other than the circumstances provided under
Section 10 hereof, for a period of one (1) year following the date of his
termination of employment with the Bank (or, if less, for the Remaining
Unexpired Employment Period), Executive shall not, without the written consent
of the Bank, 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 Bank in any city,
town or county in which the Bank 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 12 of this
Agreement, this Section 15 shall not prevent Executive from accepting any
position or performing any services if (a) Executive first offers, by written
notice, to accept a similar position with, or perform similar services for, the
Bank on substantially the same terms and conditions and (b) the Bank declines to
accept such offer within ten (10) days after such notice is given.
SECTION 16. CONFIDENTIALITY.
Unless Executive obtains the prior written consent of the Bank,
Executive shall keep confidential and shall refrain from using for the benefit
of himself, or any person or entity other than the Bank or any entity of which
the Bank is a subsidiary, any material document or information obtained from the
Bank, or from its parent or subsidiaries, in the course of his 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 his own) until the same ceases to be material (or becomes so
ascertainable or available); provided, however, that nothing in this Section 16
shall prevent Executive, with or without the Bank'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.
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SECTION 17. 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 Bank or by Executive, shall have no
effect on the rights and obligations of the parties hereto under the Bank'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 Bank from time to
time.
SECTION 18. SUCCESSORS AND ASSIGNS.
This Agreement will inure to the benefit of and be binding upon
Executive, his legal representatives and testate or intestate distributees, the
Bank and its successors and assigns, including any successor by merger or
consolidation or a statutory receiver or any other person or firm or corporation
to which all or substantially all of the assets and business of the Bank may be
sold or otherwise transferred. Failure of the Bank to obtain from any successor
its express written assumption of the Bank'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 19. 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:
Xxxxxx X. Xxxxx, Xx.
00 Xxxx Xxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
If to the Bank:
Xxxxxx Federal Savings Bank
00 Xxxx 000xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chairman of the Compensation Committee
of the Board of Directors
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with a copy to:
Xxxxxxx Xxxxxxxx & Wood
Two World Trade Center
New York, New York 10048
Attention: Xxxx X. Xxxxxx, Esq.
SECTION 20. INDEMNIFICATION FOR ATTORNEYS' FEES.
The Bank shall indemnify, hold harmless and defend Executive against
reasonable costs, including legal fees, incurred by Executive in connection with
or arising out of any action, suit or proceeding in which Executive may be
involved, as a result of his efforts, in good faith, to defend or enforce the
terms of this Agreement; provided, however, that the 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 Bank'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 21. 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 22. WAIVER.
Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of 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 23. 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.
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SECTION 24. 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 25. 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 26. 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, including all terms of the Prior Agreement between the Bank and
Executive. No modifications of this Agreement shall be valid unless made in
writing and signed by the parties hereto. No provision of this Agreement shall
be interpreted to mean that Executive is subject to receiving fewer benefits
than those available to him without reference to this Agreement.
SECTION 27. REQUIRED REGULATORY PROVISIONS.
The following provisions are included for the purpose of complying with
various laws, rules and regulations applicable to the Bank:
(a) Notwithstanding anything herein contained to the contrary, in no
event shall the aggregate amount of compensation payable to the Executive
under Section 11 hereof (exclusive of amounts described in Sections 11(a),
(i) and (j)) exceed three times the Executive's average annual total
compensation for the last five consecutive calendar years to end prior to
his termination of employment with the Bank (or for his entire period of
employment with the Bank if less than five calendar years).
(b) Notwithstanding anything herein contained to the contrary, any
payments to the Executive by the Bank, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with Section
18(k) of the Federal Deposit Insurance Act ("FDI Act"), 12 U.S.C.
Section 1828(k), and any regulations promulgated thereunder.
(c) Notwithstanding anything herein contained to the contrary, if the
Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the affairs of the Bank pursuant to a notice
served under Section 8(e)(3) or 8(g)(1) of
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the FDI Act, 12 U.S.C. Section 1818(e)(3) or 1818(g)(1), the Bank's
obligations under this Agreement shall be suspended as of the date of
service of such notice, unless stayed by appropriate proceedings. If the
charges in such notice are dismissed, the Bank, in its discretion, may (i)
pay to the Executive all or part of the compensation withheld while the
Bank's obligations hereunder were suspended and (ii) reinstate, in whole or
in part, any of the obligations which were suspended.
(d) Notwithstanding anything herein contained to the contrary, 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
8(g)(1) of the FDI Act, 12 U.S.C. Section 1818(e)(4) or (g)(1), all
prospective obligations of the Bank under this Agreement shall terminate as
of the effective date of the order, but vested rights and obligations of the
Bank and the Executive shall not be affected.
(e) Notwithstanding anything herein contained to the contrary, if the
Bank is in default (within the meaning of Section 3(x)(1) of the FDI Act, 12
U.S.C. Section 1813(x)(1), all prospective obligations of the Bank under
this Agreement shall terminate as of the date of default, but vested rights
and obligations of the Bank and the Executive shall not be affected.
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(f) Notwithstanding anything herein contained to the contrary, all
prospective obligations of the Bank hereunder shall be terminated, except to
the extent that a continuation of this Agreement is necessary for the
continued operation of the Bank: (i) by the Director of the Office of Thrift
Supervision ("OTS") or his designee or the Federal Deposit Insurance
Corporation ("FDIC"), at the time the FDIC enters into an agreement to
provide assistance to or on behalf of the Bank under the authority contained
in Section 13(c) of the FDI Act, 12 U.S.C. Section 1823(c); (ii) by the
Director of the OTS or his designee at the time such Director or designee
approves a supervisory merger to resolve problems related to the operation
of the Bank or when the Bank is determined by such Director to be in an
unsafe or unsound condition. The vested rights and obligations of the
parties shall not be affected.
If and to the extent that any of the foregoing provisions shall cease to be
required by applicable law, rule or regulation, the same shall become
inoperative as though eliminated by formal amendment of this Agreement.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed
and Executive has hereunto set his hand, all as of the day and year first above
written.
/s/ Xxxxxx X. Xxxxx, Xx.
------------------------------------
Xxxxxx X. Xxxxx, Xx.
