EXHIBIT 10.1
[FORM OF 2 YEAR AGREEMENT]
INVESTORS BANCORP, INC.
EMPLOYMENT AGREEMENT
FOR
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This Agreement is made effective as of the ____ day of _____________,
2005 by and between Investors Bancorp, Inc., a Delaware corporation (the
"Company"), with its principal administrative office at 000 XXX Xxxxxxx, Xxxxx
Xxxxx, Xxx Xxxxxx 00000, and _________________ ("Executive").
WHEREAS, Executive is currently employed as the _____________________
of the Company, which owns 100% of the Common Stock of Investors Savings Bank, a
New Jersey chartered stock savings bank (the "Bank"); and
WHEREAS, in consideration of Executive's outstanding service to the
Company, the Company desires to assure the continued services of Executive
pursuant to the terms of this Agreement; and
WHEREAS, the Company also wishes to provide Executive with certain
protections and benefits in the event of a Change in Control of the Company or
the Bank, as provided in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions hereinafter set forth, the Company and Executive hereby
agree as follows:
1. POSITION AND RESPONSIBILITIES
During the period of his employment hereunder, Executive agrees to
serve as ___________________________ of the Company. During said period,
Executive also agrees to serve, if elected, as an officer and director of any
subsidiary or affiliate of the Company. Failure to reelect Executive as
_______________________ without the consent of Executive during the term of this
Agreement shall constitute a breach of this Agreement.
2. TERMS AND DUTIES
(a) The period of Executive's employment under this Agreement
shall begin as of the date first above written and shall continue for
twenty-four (24) full calendar months thereafter. Commencing on December 31,
2006, and continuing on December 31st of each year thereafter (the
"AnniversaryDate"), this Agreement shall renew for an additional year such that
the remaining term shall be three (3) years unless written notice of non-renewal
("Non-Renewal Notice") is provided to Executive at least thirty (30) days and
not more than sixty (60) days prior to any such Anniversary Date, that this
Agreement shall terminate at the end of twenty-four (24) months following such
Anniversary Date. Prior to each notice period for non-renewal, the disinterested
members of the Board of Directors of the Company ("Board") will conduct a
comprehensive performance evaluation and review of Executive for purposes of
determining
whether to extend the Agreement, and the results thereof shall be included in
the minutes of the Board's meeting.
(b) During the period of his employment hereunder, except for
periods of absence occasioned by illness, reasonable vacation periods, and
reasonable leaves of absence, Executive shall faithfully perform his duties
hereunder including activities and services related to the organization,
operation and management of the Company.
3. COMPENSATION AND REIMBURSEMENT
(a) The compensation specified under this Agreement shall
constitute the salary and benefits paid for the duties described in Section
2(b). In consideration of the services to be rendered by Executive hereunder,
the Company and/or its subsidiaries shall pay Executive as compensation a salary
of not less than __________________________ ($_______.00) per year ("Base
Salary"). Such Base Salary shall be payable bi-weekly, or in accordance with the
Company's normal payroll practices. During the period of this Agreement,
Executive's Base Salary shall be reviewed at least annually; the first such
review will be made no later than December 31 of each year during the term of
this Agreement and shall be effective from the first day of the next calendar
year. Such review shall be conducted by a Committee designated by the Board of
Directors of the Company and the Board of Directors of the Bank (collectively
the "Boards"), and the Boards may increase, but not decrease, Executive's Base
Salary (any increase in Base Salary shall become the "Base Salary" for purposes
of this Agreement).
(b) The Company and/or its subsidiaries will provide Executive
with employee benefit plans, arrangements and perquisites substantially
equivalent to those in which Executive was participating or otherwise deriving
benefit from immediately prior to the beginning of the term of this Agreement,
and the Company and/or its subsidiaries will not, without Executive's prior
written consent, make any changes in such plans, arrangements or perquisites
which would adversely affect Executive's rights or benefits thereunder. Without
limiting the generality of the foregoing provisions of this Section 3(b),
Executive will be entitled to participate in or receive benefits under any
employee benefit plans including but not limited to, retirement plans,
supplemental retirement plans, pension plans, profit-sharing plans,
health-and-accident plans, medical coverage or any other employee benefit plan
or arrangement made available by the Company and/or its subsidiaries in the
future to its senior executives and key management employees, subject to and on
a basis consistent with the terms, conditions and overall administration of such
plans and arrangements. Executive will be entitled to incentive compensation and
bonuses as provided in any plan of the Company and/or its subsidiaries in which
Executive is eligible to participate (and he shall be entitled to a pro rata
distribution under any incentive compensation or bonus plan as to any year in
which a termination of employment occurs, other than termination for Just
Cause). 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.
(c) In addition to the Base Salary provided for by paragraph (a)
of this Section 3, the Company and/or its subsidiaries shall pay or reimburse
Executive for all reasonable travel and other reasonable expenses incurred by
Executive in performing his obligations under this
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Agreement and may provide such additional compensation in such form and such
amounts as the Board may from time to time determine.
4. OUTSIDE ACTIVITIES
Executive may serve as a member of the board of directors of business,
community and charitable organizations subject to the approval of the Board,
provided that in each case such service shall not materially interfere with the
performance of his duties under this Agreement or present any conflict of
interest. Such service to and participation in outside organizations shall be
presumed for these purposes to be for the benefit of the Company, and the
Company shall reimburse Executive his reasonable expenses associated therewith.
5. WORKING FACILITIES AND EXPENSES
Executive's principal place of employment shall be the Company's
principal executive offices. The Company shall provide Executive, at his
principal place of employment, with a private office, stenographic services and
other support services and facilities suitable to his position with the Company
and necessary or appropriate in connection with the performance of his duties
under this Agreement. The Company shall reimburse Executive for his ordinary and
necessary business expenses incurred in connection with the performance of his
duties under this Agreement, including, without limitation, fees for memberships
in such clubs and organizations that Executive and the Board mutually agree are
necessary and appropriate to further the business of the Company, and travel and
reasonable .entertainment expenses. Reimbursement of such expenses shall be made
upon presentation to the Company of an itemized account of the expenses in such
form as the Company may reasonably require.
6. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
(a) The provisions of this Section 6 shall apply upon the
occurrence of an Event of Termination (as herein defined) during Executive's
term of employment under this Agreement. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following:
(i) the termination by the Company or the Bank of
Executive's full-time employment hereunder for any
reason other than (A) Disability or Retirement (as
defined in Section 7 below), or (B) termination for
Just Cause as defined in Section 8 hereof; or
(ii) Executive's resignation from the Bank's employ, upon
any
(A) failure to elect or reelect or to appoint or
reappoint Executive as
_________________________, material change
in Executive's function, duties, or
responsibilities, which change would cause
Executive's position to become one of lesser
responsibility, importance, or scope from
the position and attributes thereof
described in Section 1, above,
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(B) liquidation or dissolution of the Company or
the Bank other than liquidations or
dissolutions that are caused by
reorganizations that do not affect the
status of Executive, or
(C) material breach of this Agreement by the
Company.
Upon the occurrence of any event described in clauses (ii) (A), (B), (C) or (D),
above, Executive shall have the right to elect to terminate his employment under
this Agreement by resignation upon sixty (60) days prior written notice given
within a reasonable period of time not to exceed four calendar months after the
initial event giving rise to said right to elect. Notwithstanding the preceding
sentence, in the event of a continuing breach of this Agreement by the Company,
Executive, after giving due notice within the prescribed time frame of an
initial event specified above, shall not waive any of his rights solely under
this Agreement and this Section by virtue of the fact that Executive has
submitted his resignation but has remained in the employment of the Company and
is engaged in good faith discussions to resolve any occurrence of an event
described in clauses (A), (B), (C) or (D) above.
(iii) Executive's involuntary termination by the Company or
voluntary resignation from the Company's employ on
the effective date of, or at any time following, a
Change in Control during the term of this Agreement.
For these purposes, a Change in Control of the
Company or the Bank shall mean a change in control of
a nature that: (i) would be required to be reported
in response to Item 5.01 of the current report on
Form 8-K, as in effect on the date hereof, pursuant
to Section 13 or 15(d) of the Securities Exchange Act
of 0000 (xxx "Xxxxxxxx Xxx"); or (ii) results in a
Change in Control of the Bank or the Company within
the meaning of the Bank Holding Company Act, as
amended, and applicable rules and regulations
promulgated thereunder (collectively, the "BHCA") as
in effect at the time of the Change in Control; or
(iii) without limitation such a Change in Control
shall be deemed to have occurred at such time as (a)
any "person" (as the term is used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of
securities of the Company representing 25% or more of
the combined voting power of Company's outstanding
securities, except for any securities purchased by
the Bank's employee stock ownership plan or trust; or
(b) individuals who constitute the Board on the date
hereof (the "Incumbent Board") cease for any reason
to constitute at least a majority thereof, provided
that any person becoming a director subsequent to the
date hereof whose election was approved by a vote of
at least three-quarters of the directors comprising
the Incumbent Board, or whose nomination for election
by the Company's stockholders was approved by the
same Nominating Committee serving under an Incumbent
Board, shall be, for purposes of this clause (b),
considered as though he were a member of the
Incumbent Board; or (c) a plan of reorganization,
merger, consolidation, sale of all or substantially
all the assets of the Bank or the Company or similar
transaction in which the Bank or Company is not the
surviving institution occurs or is
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implemented; or (d) a proxy statement soliciting
proxies from stockholders of the Company is
distributed, by someone other than the current
management of the Company, seeking stockholder
approval of a plan of reorganization, merger or
consolidation of the Company or similar transaction
with one or more corporations as a result of which
the outstanding shares of the class of securities
then subject to the plan are exchanged for or
converted into cash or property or securities not
issued by the Company; or (e) a tender offer is made
for 25% or more of the voting securities of the
Company and the shareholders owning beneficially or
of record 25% or more of the outstanding securities
of the Company have tendered or offered to sell their
shares pursuant to such tender offer and such
tendered shares have been accepted by the tender
offeror. Notwithstanding anything in this subsection
to the contrary, a Change in Control shall not be
deemed to have occurred upon the conversion of the
Company's mutual holding company parent to stock
form, or in connection with any reorganization used
to effect such a conversion.
(b) Upon the occurrence of an Event of Termination, on the Date of
Termination, as defined in Section 9(b), the Company and/or its subsidiaries
shall pay Executive, or, in the event of his subsequent death, his beneficiary
or beneficiaries, or his estate, as the case may be, as severance pay or
liquidated damages, or both, a sum equal to one and one-half (1 1/2 ) times the
sum of (i) Executive's Base Salary and (ii) the highest rate of bonus awarded to
Executive during the prior two years. Payments hereunder shall be made in a lump
sum within thirty (30) days (or if Code Section 409A is applicable, on the first
day of the seventh full month) following Executive's termination of employment.
(c) Upon the occurrence of an Event of Termination, the Company
will cause to be continued, at Company's sole expense, life, medical, dental and
disability coverage substantially identical to the coverage maintained by the
Company and/or the Bank for Executive prior to his termination. Such coverage or
payment shall continue for eighteen (18) months from the Date of Termination.
(d) Upon the occurrence of any Event of Termination, within sixty
(60) days (or, if Code Section 409A is applicable, on the first day of the
seventh full month) following Executive's termination of employment with the
Company, a lump sum payment in an amount equal to the excess, if any, of: (A)
the present value of the benefits to which he would be entitled under the
Company and/or the Bank's defined benefit pension plan (and any other defined
benefit plan maintained by the Company and/or the Bank) if he had the additional
years of service that he would have had if he had continued working for the
Company for a thirty-six (36) month period following his termination earning the
salary that would have been paid during the remaining unexpired term of this
Agreement (assuming, if a Change in Control as defined in Section 4(a)(iii) has
occurred, that the annual Base Salary under Section 3(a) continues for the
remaining unexpired term of this Agreement), determined as if each such plan had
continued in effect without change in accordance with its terms as of the day
prior to his actual date of his termination and as if such benefits were payable
beginning on the first day of the month coincident with or next following his
actual date of his termination, over (B) the present value of the benefits to
which he is actually entitled under the Company and/or the Bank's defined
benefit
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pension plan (and any other defined benefit plan maintained by the Company
and/or the Bank) as of the date of his termination, where such present values
are to be determined using a discount rate of 6% and the mortality tables
prescribed under Section 72 of the Internal Revenue Code of 1986 ("Code").
(e) Notwithstanding the preceding paragraphs of this Section, in
the event that the aggregate payments or benefits to be made or afforded to
Executive under said paragraphs (the "Termination Benefits") would be deemed to
include an "excess parachute payment" under Section 280G of the Code or any
successor thereto, then such Termination Benefits will be reduced to an amount
(the "Non-Triggering Amount"), the value of which is one dollar ($1.00) less
than an amount equal to the total amount of payments permissible under Section
280G of the Code or any successor thereto.
7. TERMINATION UPON RETIREMENT, DISABILITY OR DEATH
For purposes of this Agreement, termination by the Company of
Executive's employment based on "Retirement" shall mean termination of
Executive's employment by the Company upon attainment of age 65, or such later
date as determined to by the Board of Directors of the Company. Upon termination
of Executive's employment upon Retirement, Executive shall be entitled to all
benefits under any retirement plan of the Company and other plans to which
Executive is a party but shall not be entitled to the Termination Benefits
specified in Section 6(b) through (d) hereof.
In the event Executive is unable to perform his duties under this
Agreement on a full-time basis for a period of six (6) consecutive months by
reason of illness or other physical or mental disability ("Disability"), the
Company may terminate this Agreement, provided that the Company shall continue
to be obligated to pay Executive his Base Salary for the remaining term of the
Agreement, or one year, whichever is the longer period of time, and provided
further that any amounts actually paid to Executive pursuant to any disability
insurance or other similar such program which the Company has provided or may
provide on behalf of its employees or pursuant to any xxxxxxx'x or social
security disability program shall reduce the compensation to be paid to
Executive pursuant to this paragraph.
In the event of Executive's death during the term of the Agreement, his
estate, legal representatives or named beneficiaries (as directed by Executive
in writing) shall be paid Executive's Base Salary as defined in Paragraph 3(a)
at the rate in effect at the time Executive's death for a period of one (1) year
from the date of Executive's death, and the Company will continue to provide
medical and dental coverage for Executive's family for one (1) year after
Executive's other benefits normally provided for an Executive's death.
8. TERMINATION FOR JUST CAUSE
In the event that employment hereunder is terminated by the Company for
Just Cause, the Executive shall not be entitled to receive compensation or other
benefits for any period after such termination, except as provided by law. The
phrase "Just Cause" as used herein, shall exist when there has been a good faith
determination by the Board that there shall have occurred one or more of the
following events with respect to the Executive: (i) the conviction of the
Executive of
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a felony or of any lesser criminal offense involving moral turpitude; (ii) the
willful commission by the Executive of a criminal or other act that, in the
judgment of the Board will likely cause substantial economic damage to the
Company or the Bank or substantial injury to the business reputation of the
Company or Bank; (iii) the commission by the Executive of an act of fraud in the
performance of his duties on behalf of the Company or Bank; (iv) the continuing
willful failure of the Executive to perform his duties to the Company or Bank
(other than any such failure resulting from the Executive's incapacity due to
physical or mental illness) after written notice thereof (specifying the
particulars thereof in reasonable detail) and a reasonable opportunity to be
heard and cure such failure are given to the Executive by the Board; or (v) an
order of a federal or state regulatory agency or a court of competent
jurisdiction requiring the termination of the Executive's employment by the
Company. Executive shall not have the right to receive compensation or other
benefits for any period after Termination for Just Cause.Notwithstanding the
foregoing, Just Cause shall not be deemed to exist unless there shall have been
delivered to the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the entire membership of the
Board at a meeting of the Board called and held for the purpose (after
reasonable notice to the Executive and an opportunity for the Executive to be
heard before the Board), finding that in the good faith opinion of the Board the
Executive was guilty of conduct described above and specifying the particulars
thereof. Prior to holding a meeting at which the Board is to make a final
determination whether Just Cause exists, if the Board determines in good faith
at a meeting of the Board, by not less than a majority of its entire membership,
that there is probable cause for it to find that the Executive was guilty of
conduct constituting Just Cause as described above, the Board may suspend the
Executive from his duties hereunder for a reasonable period of time not to
exceed fourteen (14) days pending a further meeting at which the Executive shall
be given the opportunity to be heard before the Board. For purposes of this
subparagraph, no act or failure to act, on the Executive's part shall be
considered "willful" unless done, or omitted to be done, by him not in good
faith without reasonable believe that his action or omission was in the best
interest of the Company and the Bank. Upon a finding of Just Cause, the Board
shall deliver to the Executive a Notice of Termination, as more fully described
in Section 9 below.
9. NOTICE
(a) Any purported termination by the Company or by Executive shall
be communicated by Notice of Termination to the other party hereto. For purposes
of this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(b) "Date of Termination" shall mean (A) if Executive's employment
is terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that he shall not have returned to the performance of his duties
on a full-time basis during such thirty (30) day period), and (B) if his
employment is terminated for any other reason, the date specified in the Notice
of Termination (which, except in the case of a termination for Just Cause, shall
not be less than thirty (30) days from the date such Notice of Termination is
given). In the event of termination for Just Cause, termination shall be
immediate upon the receipt of a Notice of Termination.
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(c) If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, except upon the voluntary
termination by Executive in which case the Date of Termination shall be the date
specified in the Notice, the Date of Termination shall be the date on which the
dispute is finally determined, either by mutual written agreement of the
parties, by a binding arbitration award, or by a final judgment, order or decree
of a court of competent jurisdiction (the time for appeal having expired and no
appeal having been perfected) and provided further that the Date of Termination
shall be extended by a notice of dispute only if such notice is given in good
faith and the party giving such notice pursues the resolution of such dispute
with reasonable diligence. Notwithstanding the pendency of any such dispute,
except in the event of termination for Just Cause, the Bank will continue to pay
Executive his full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, Base Salary) and continue
Executive as a participant in all compensation, benefit and insurance plans in
which he was participating when the notice of dispute was given, until the
dispute is finally resolved in accordance with this Agreement, provided such
dispute is resolved within the term of this Agreement. If such dispute is not
resolved within the term of the Agreement, the Bank shall not be obligated, upon
final resolution of such dispute, to pay Executive compensation and other
payments accruing beyond the term of the Agreement. Amounts paid under this
Section following Notice of Termination shall be offset against or reduce any
other amounts due under this Agreement.
10. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement
shall be subject to Executive's compliance with paragraph (b) of this Section
during the term of this Agreement and for one (1) full year after the expiration
or termination hereof.
(b) Executive shall, upon reasonable notice, furnish such
information and assistance to the Bank as may reasonably be required by the Bank
in connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party.
11. NON-COMPETITION
(a) Upon any termination of Executive's employment hereunder,
other than a termination (whether voluntary or involuntary) following a Change
in Control, as a result of which the Company is paying Executive benefits under
Section 6 of this Agreement, Executive agrees not to compete with the Bank
and/or the Company for a period of one (1) year following such termination
within twenty-five (25) miles of any existing branch of the Bank or any
subsidiary of the Company or within twenty-five (25) miles of any office for
which the Bank, the Company or a Bank subsidiary of the Company has filed an
application for regulatory approval to establish an office, determined as of the
effective date of such termination, except as agreed to pursuant to a resolution
duly adopted by the Board. Executive agrees that during such period and within
said area, cities, towns and counties, Executive shall not work for or advise,
consult or otherwise serve with, directly or indirectly, any entity whose
business materially competes with the depository, lending or other business
activities of the Bank and/or the Company. The parties hereto, recognizing that
irreparable injury will result to the Bank and/or the Company, its business and
property in the event of Executive's breach of this Subsection 11(a) agree that
in
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the event of any such breach by Executive, the Bank and/or the Company will be
entitled, in addition to any other remedies and damages available, to an
injunction to restrain the violation hereof by Executive, Executive's partners,
agents, servants, employers, employees and all persons acting for or with
Executive. Executive represents and admits that Executive's experience and
capabilities are such that Executive can obtain employment in a business engaged
in other lines and/or of a different nature than the Bank and/or the Company,
and that the enforcement of a remedy by way of injunction will not prevent
Executive from earning a livelihood. Nothing herein will be construed as
prohibiting the Bank and/or the Company from pursuing any other remedies
available to the Bank and/or the Company for such breach or threatened breach,
including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of
the business activities and plans for business activities of the Company and
affiliates thereof, as it may exist from time to time, is a valuable, special
and unique asset of the business of the Company. Executive will not, during or
after the term of his employment, disclose any knowledge of the past, present,
planned or considered business activities of the Company or affiliates thereof
to any person, firm, corporation, or other entity for any reason or purpose
whatsoever (except for such disclosure as may be required to be provided to any
federal banking agency with jurisdiction over the Company or Executive).
Notwithstanding the foregoing, Executive may disclose any knowledge of banking,
financial and/or economic principles, concepts or ideas which are not solely and
exclusively derived from the business plans and activities of the Company, and
Executive may disclose any information regarding the Bank or the Company which
is otherwise publicly available. In the event of a breach or threatened breach
by Executive of the provisions of this Section, the Company will be entitled to
an injunction restraining Executive from disclosing, in whole or in part, the
knowledge of the past, present, planned or considered business activities of the
Company or affiliates thereof, or from rendering any services to any person,
firm, corporation, other entity to whom such knowledge, in whole or in part, has
been disclosed or is threatened to be disclosed. Nothing herein will be
construed as prohibiting the Company from pursuing any other remedies available
to the Company for such breach or threatened breach, including the recovery of
damages from Executive.
12. SOURCE OF PAYMENTS; NO DUPLICATION OF PAYMENTS
(a) All payments provided in this Agreement shall be timely paid
in cash or check from the general funds of the Company.
(b) Notwithstanding any provision herein to the contrary, to the
extent that payments and benefits, as provided by this Agreement, are paid to or
received by Executive from the Bank, such compensation payments and benefits
paid by the Bank will be subtracted from any amount due Executive under this
Agreement. Payments pursuant to this Agreement shall be paid by the Company
and/or the Bank and shall be allocated in proportion to the level of activity
and the time expended on such activities by Executive as determined by the
Company and the Bank on a quarterly basis.
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13. NO EFFECT EMPLOYEE BENEFITS PLANS OR PROGRAMS
The termination of Executive's employment during the term of this
Agreement or thereafter, whether by the Company or by Executive, shall have no
effect on the vested rights of Executive under the Company's or 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
other employee benefit plans or programs, or compensation plans or programs in
which Executive was a participant.
14. REQUIRED REGULATORY PROVISIONS
(a) Notwithstanding anything herein contained to the contrary, any
payments to Executive by the 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 the
regulations promulgated thereunder in 12 C.F.R. Part 359.
(b) The Company may terminate the Executive's employment at any
time and for any reason, but any termination by the Company, other than
Termination for Cause, shall not prejudice Executive's right to compensation or
other benefits under this Agreement.
15. NO ATTACHMENT
(a) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit
of, Executive and the Bank and their respective successors and assigns.
16. ENTIRE AGREEMENT; MODIFICATION AND WAIVER
(a) 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.
(b) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(c) No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future as to any act other
than that specifically waived.
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17. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
18. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
19. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Delaware
but only to the extent not superseded by federal law.
20. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators, one of whom shall be selected by the Company, one of whom
shall be selected by Executive and the third of whom shall be selected by the
other two arbitrators. The panel shall sit in a location within fifty (50) miles
from the location of the Company, in accordance with the rules of the Judicial
Mediation and Arbitration Systems (JAMS) then in effect. Judgment may be entered
on the arbitrators award in any court having jurisdiction; provided, however,
that Executive shall be entitled to seek specific performance of his right to be
paid until the Date of Termination during the pendency of any dispute or
controversy arising under or in connection with this Agreement.
21. PAYMENT OF LEGAL FEES
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Company, provided that the dispute or interpretation has
been settled by Executive and the Company or resolved in Executive's favor.
22. INDEMNIFICATION
During the term of this Agreement, the Company shall provide Executive
(including his heirs, executors and administrators) with coverage under a
standard directors and officers liability insurance policy at its expense, and
shall indemnify Executive (and his heirs, executors and administrators) to the
fullest extent permitted under Delaware law against all expenses and liabilities
reasonably incurred by him in connection with or arising out of any action, suit
or proceeding in which he may be involved by reason of his having been a
director or officer of the Company (whether or not he continues to be a director
or officer at the time of incurring such expenses or liabilities), such expenses
and liabilities to include, but not be limited to, judgments, court costs and
attorneys fees and the cost of reasonable settlements (such settlements must be
11
approved by the Board of Directors of the Company). If such action, suit or
proceeding is brought against Executive in his capacity as an officer or
director of the Company, however, such indemnification shall not extend to
matters as to which Executive is finally adjudged to be liable for willful
misconduct in the performance of his duties.
23. SUCCESSOR TO THE COMPANY
The Company shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or the Company, expressly
and unconditionally to assume and agree to perform the Company's obligations
under this Agreement, in the same manner and to the same extent that the Company
would be required to perform if no such succession or assignment had taken
place.
[SIGNATURE PAGE FOLLOWS]
12
SIGNATURES
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and Executive has signed this Agreement,
on the day and date first above written.
ATTEST: INVESTORS BANCORP, INC.
By:
--------------------------- --------------------------------
Secretary
WITNESS: EXECUTIVE:
By:
--------------------------- --------------------------------
13
[FORM OF 3 YEAR AGREEMENT]
INVESTORS BANCORP, INC.
EMPLOYMENT AGREEMENT
FOR
----------------------------------------
This Agreement is made effective as of the ____ day of _____________,
2005 by and between Investors Bancorp, Inc., a Delaware corporation (the
"Company"), with its principal administrative office at 000 XXX Xxxxxxx, Xxxxx
Xxxxx, Xxx Xxxxxx 00000, and _________________ ("Executive").
WHEREAS, Executive is currently employed as the
____________________________ of the Company, which owns 100% of the Common Stock
of Investors Savings Bank, a New Jersey chartered stock savings bank (the
"Bank"); and
WHEREAS, in consideration of Executive's outstanding service to the
Company, the Company desires to assure the continued services of Executive
pursuant to the terms of this Agreement; and
WHEREAS, the Company also wishes to provide Executive with certain
protections and benefits in the event of a Change in Control of the Company or
the Bank, as provided in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions hereinafter set forth, the Company and Executive hereby
agree as follows:
1. POSITION AND RESPONSIBILITIES
During the period of his employment hereunder, Executive agrees to
serve as ___________________________ of the Company. During said period,
Executive also agrees to serve, if elected, as an officer and director of any
subsidiary or affiliate of the Company. Failure to reelect Executive as
_______________________ without the consent of Executive during the term of this
Agreement shall constitute a breach of this Agreement.
2. TERMS AND DUTIES
(a) The period of Executive's employment under this Agreement
shall begin as of the date first above written and shall continue for thirty-six
(36) full calendar months thereafter. Commencing no later than December 31,
2006, and continuing no later than December 31st of each year thereafter (the
"Anniversary Date"), this Agreement shall renew for an additional year such that
the remaining term shall be three (3) years unless written notice of non-renewal
("Non-Renewal Notice") is provided to Executive at least thirty (30) days and
not more than sixty (60) days prior to any such Anniversary Date, that this
Agreement shall terminate at the end of thirty-six (36) months following such
Anniversary Date. Prior to each notice period for non-renewal, the disinterested
members of the Board of Directors of the Company ("Board") will conduct a
comprehensive performance evaluation and review of Executive for purposes of
determining
whether to extend the Agreement, and the results thereof shall be included in
the minutes of the Board's meeting.
(b) During the period of his employment hereunder, except for
periods of absence occasioned by illness, reasonable vacation periods, and
reasonable leaves of absence, Executive shall faithfully perform his duties
hereunder including activities and services related to the organization,
operation and management of the Company.
3. COMPENSATION AND REIMBURSEMENT
(a) The compensation specified under this Agreement shall
constitute the salary and benefits paid for the duties described in Section
2(b). In consideration of the services to be rendered by Executive hereunder,
the Company and/or its subsidiaries shall pay Executive as compensation a salary
of not less than __________________________ ($_______.00) per year ("Base
Salary"). Such Base Salary shall be payable bi-weekly, or in accordance with the
Company's normal payroll practices. During the period of this Agreement,
Executive's Base Salary shall be reviewed at least annually; the first such
review will be made no later than December 31 of each year during the term of
this Agreement and shall be effective from the first day of the next calendar
year. Such review shall be conducted by a Committee designated by the Board of
Directors of the Company and the Board of Directors of the Bank (collectively
the "Boards"), and the Boards may increase, but not decrease, Executive's Base
Salary (any increase in Base Salary shall become the "Base Salary" for purposes
of this Agreement). In addition to the Base Salary provided in this Section
3(a), the Company and/or its subsidiaries shall provide Executive at no cost to
Executive with all such other benefits as are provided uniformly to permanent
full-time employees of the Company and/or its subsidiaries.
(b) The Company and/or its subsidiaries will provide Executive
with employee h benefit plans, arrangements and perquisites substantially
equivalent to those in which Executive was participating or otherwise deriving
benefit from immediately prior to the beginning of the term of this Agreement,
and the Company and/or its subsidiaries will not, without Executive's prior
written consent, make any changes in such plans, arrangements or perquisites
which would adversely affect Executive's rights or benefits thereunder. Without
limiting the generality of the foregoing provisions of this Section 3(b),
Executive will be entitled to participate in or receive benefits under any
employee benefit plans including but not limited to, retirement plans,
supplemental retirement plans, pension plans, profit-sharing plans,
health-and-accident plans, medical coverage or any other employee benefit plan
or arrangement made available by the Company and/or its subsidiaries in the
future to its senior executives and key management employees, subject to and on
a basis consistent with the terms, conditions and overall administration of such
plans and arrangements. Executive will be entitled to incentive compensation and
bonuses as provided in any plan of the Company and/or its subsidiaries in which
Executive is eligible to participate (and he shall be entitled to a pro rata
distribution under any incentive compensation or bonus plan as to any year in
which a termination of employment occurs, other than termination for Just
Cause). 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.
2
(c) In addition to the Base Salary provided for by paragraph (a)
of this Section 3, the Company and/or its subsidiaries shall pay or reimburse
Executive for all reasonable travel and other reasonable expenses incurred by
Executive in performing his obligations under this Agreement and may provide
such additional compensation in such form and such amounts as the Board may from
time to time determine.
4. OUTSIDE ACTIVITIES
Executive may serve as a member of the board of directors of business,
community and charitable organizations subject to the approval of the Board,
provided that in each case such service shall not materially interfere with the
performance of his duties under this Agreement or present any conflict of
interest. Such service to and participation in outside organizations shall be
presumed for these purposes to be for the benefit of the Company, and the
Company shall reimburse Executive his reasonable expenses associated therewith.
5. WORKING FACILITIES AND EXPENSES
Executive's principal place of employment shall be the Company's
principal executive offices. The Company shall provide Executive, at his
principal place of employment, with a private office, stenographic services and
other support services and facilities suitable to his position with the Company
and necessary or appropriate in connection with the performance of his duties
under this Agreement. The Company and/or its subsidiaries shall provide
Executive with an automobile suitable to the position of
____________________________ of the Company, and such automobile may be used by
Executive in carrying out his duties under this Agreement and for his personal
use such as commuting between his residence and his principal place of
employment. The Company shall reimburse Executive for the cost of maintenance,
use and servicing of such automobile. The Company shall reimburse Executive for
his ordinary and necessary business expenses incurred in connection with the
performance of his duties under this Agreement, including, without limitation,
fees for memberships in such clubs and organizations that Executive and the
Board mutually agree are necessary and appropriate to further the business of
the Company, and travel and reasonable entertainment expenses. Reimbursement of
such expenses shall be made upon presentation to the Company of an itemized
account of the expenses in such form as the Company may reasonably require.
6. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
(a) The provisions of this Section 6 shall apply upon the
occurrence of an Event of Termination (as herein defined) during Executive's
term of employment under this Agreement. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following:
(i) the termination by the Company or the Bank of
Executive's full-time employment hereunder for any
reason other than (A) Disability (as defined in
Section 7) or Retirement (as defined in Section 7
below), or (B) termination for Just Cause (as defined
in Section 8 below); or
(ii) Executive's resignation from the Bank's employ, upon
any
3
(A) failure to elect or reelect or to appoint or
reappoint Executive as____________________,
(B) material change in Executive's functions,
duties, or responsibilities, which change
would cause Executive's position to become
one of lesser responsibility, importance, or
scope from the position and attributes
thereof described in Section 1, above,
(C) liquidation or dissolution of the Company or
the Bank other than liquidations or
dissolutions that are caused by
reorganizations that do not affect the
status of Executive, or
(D) material breach of this Agreement by the
Company.
Upon the occurrence of any event described in clauses (ii) (A), (B), (C)or (D),
above, Executive shall have the right to elect to terminate his employment under
this Agreement by resignation upon sixty (60) days prior written notice given
within a reasonable period of time not to exceed four calendar months after the
initial event giving rise to said right to elect. Notwithstanding the preceding
sentence, in the event of a continuing breach of this Agreement by the Company,
Executive, after giving due notice within the prescribed time frame of an
initial event specified above, shall not waive any of his rights solely under
this Agreement and this Section by virtue of the fact that Executive has
submitted his resignation but has remained in the employment of the Company and
is engaged in good faith discussions to resolve any occurrence of an event
described in clauses (A), (B), (C) or (D) above.
(iii) The termination of Executive's employment by the
Company, or the Executive's voluntary resignation
from the Company's employ, at any time following a
Change in Control during the term of this Agreement.
For these purposes, a Change in Control of the
Company or the Bank shall mean a change in control of
a nature that: (i) would be required to be reported
in response to Item 5.01 of the current report on
Form 8-K, as in effect on the date hereof, pursuant
to Section 13 or 15(d) of the Securities Exchange Act
of 0000 (xxx "Xxxxxxxx Xxx"); or (ii) results in a
Change in Control of the Bank or the Company within
the meaning of the Bank Holding Company Act, as
amended, and applicable rules and regulations
promulgated thereunder (collectively, the "BHCA") as
in effect at the time of the Change in Control; or
(iii) without limitation such a Change in Control
shall be deemed to have occurred at such time as (a)
any "person" (as the term is used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of
securities of the Company representing 25% or more of
the combined voting power of Company's outstanding
securities, except for any securities purchased by
the Bank's employee stock ownership plan or trust; or
(b) individuals who constitute the Board on the date
hereof (the "Incumbent Board") cease for any reason
to constitute at least a majority thereof, provided
that any person becoming a director subsequent to the
date hereof whose election was approved by a
4
vote of at least three-quarters of the directors
comprising the Incumbent Board, or whose nomination
for election by the Company's stockholders was
approved by the same Nominating Committee serving
under an Incumbent Board, shall be, for purposes of
this clause (b), considered as though he were a
member of the Incumbent Board; or (c) a plan of
reorganization, merger, consolidation, sale of all or
substantially all the assets of the Bank or the
Company or similar transaction in which the Bank or
Company is not the surviving institution occurs or is
implemented; or (d) a proxy statement soliciting
proxies from stockholders of the Company is
distributed, by someone other than the current
management of the Company, seeking stockholder
approval of a plan of reorganization, merger or
consolidation of the Company or similar transaction
with one or more corporations as a result of which
the outstanding shares of the class of securities
then subject to the plan are exchanged for or
converted into cash or property or securities not
issued by the Company; or (e) a tender offer is made
for 25% or more of the voting securities of the
Company and the shareholders owning beneficially or
of record 25% or more of the outstanding securities
of the Company have tendered or offered to sell their
shares pursuant to such tender offer and such
tendered shares have been accepted by the tender
offeror. Notwithstanding anything in this subsection
to the contrary, a Change in Control shall not be
deemed to have occurred upon the conversion of the
Company's mutual holding company parent to stock
form, or in connection with any reorganization used
to effect such a conversion.
(b) Upon the occurrence of an Event of Termination, on the Date of
Termination, as defined in Section 9(b), the Company and/or its subsidiaries
shall pay Executive, or, in the event of his subsequent death, his beneficiary
or beneficiaries, or his estate, as the case may be, as severance pay or
liquidated damages, or both, a sum equal to three (3) times the sum of (i) Base
Salary and (ii) the highest rate of bonus awarded to Executive during the prior
three years. Payments hereunder shall be made in a lump sum within thirty (30)
days (or if Code Section 409A is applicable, on the first day of the seventh
full month) following Executive's termination of employment.
(c) Upon the occurrence of an Event of Termination, the Company
will cause to be continued, at Company's sole expense, life, medical, dental and
disability coverage substantially identical to the coverage maintained by the
Company and/or the Bank for Executive prior to his termination. Such coverage or
payment shall continue for thirty-six (36) months from the Date of Termination.
(d) Upon the occurrence of any Event of Termination, within sixty
(60) days (or, if Code Section 409A is applicable, on the first day of the
seventh full month) following Executive's termination of employment with the
Company, a lump sum payment in an amount equal to the excess, if any, of: (A)
the present value of the benefits to which he would be entitled under the
Company and/or the Bank's defined benefit pension plan (and any other defined
benefit plan maintained by the Company and/or the Bank) if he had the additional
years of service that he would have had if he had continued working for the
Company for a thirty-six (36)
5
month period following his termination earning the salary that would have been
paid during the remaining unexpired term of this Agreement (assuming, if a
Change in Control as defined in Section 4(a)(iii) has occurred, that the annual
Base Salary under Section 3(a) continues for the remaining unexpired term of
this Agreement), determined as if each such plan had continued in effect without
change in accordance with its terms as of the day prior to his actual date of
his termination and as if such benefits were payable beginning on the first day
of the month coincident with or next following his actual date of his
termination, over (B) the present value of the benefits to which he is actually
entitled under the Company and/or the Bank's defined benefit pension plan ( and
any other defined benefit plan maintained by the Company and/or the Bank) as of
the date of his termination, where such present values are to be determined
using a discount rate of 6% and the mortality tables prescribed under Section 72
of the Internal Revenue Code of 1986 ("Code").
7. TERMINATION UPON RETIREMENT, DISABILITY OR DEATH
For purposes of this Agreement, termination by the Company of
Executive's employment based on "Retirement" shall mean termination of
Executive's employment by the Company upon attainment of age 65, or such later
date as determined to by the Board of Directors of the Company. Upon termination
of Executive's employment upon Retirement, Executive shall be entitled to all
benefits under any retirement plan of the Company and other plans to which
Executive is a party but shall not be entitled to the Termination Benefits
specified in Section 6(b) through (d) hereof.
In the event Executive is unable to perform his duties under this
Agreement on a full-time basis for a period of six (6) consecutive months by
reason of illness or other physical or mental disability ("Disability"), the
Company may terminate this Agreement, provided that the Company shall continue
to be obligated to pay Executive his Base Salary for the remaining term of the
Agreement, or one year, whichever is the longer period of time, and provided
further that any amounts actually paid to Executive pursuant to any disability
insurance or other similar such program which the Company has provided or may
provide on behalf of its employees or pursuant to any xxxxxxx'x or social
security disability program shall reduce the compensation to be paid to
Executive pursuant to this paragraph.
In the event of Executive's death during the term of the Agreement, his
estate, legal representatives or named beneficiaries (as directed by Executive
in writing) shall be paid Executive's Base Salary as defined in Paragraph 3(a)
at the rate in effect at the time Executive's death for a period of one (1) year
from the date of Executive's death, and the Company will continue to provide
medical and dental coverage for Executive's family for one (1) year after
Executive's death.
8. TERMINATION FOR JUST CAUSE
In the event that employment hereunder is terminated by the Company for
Just Cause, the Executive shall not be entitled to receive compensation or other
benefits for any period after such termination, except as provided by law. The
phrase "Just Cause" as used herein, shall exist when there has been a good faith
determination by the Board that there shall have occurred one or more of the
following events with respect to the Executive: (i) the conviction of the
Executive of
6
a felony or of any lesser criminal offense involving moral turpitude; (ii) the
willful commission by the Executive of a criminal or other act that, in the
judgment of the Board will likely cause substantial economic damage to the
Company or the Bank or substantial injury to the business reputation of the
Company or Bank; (iii) the commission by the Executive of an act of fraud in the
performance of his duties on behalf of the Company or Bank; (iv) the continuing
willful failure of the Executive to perform his duties to the Company or Bank
(other than any such failure resulting from the Executive's incapacity due to
physical or mental illness) after written notice thereof (specifying the
particulars thereof in reasonable detail) and a reasonable opportunity to be
heard and cure such failure are given to the Executive by the Board; or (v) an
order of a federal or state regulatory agency or a court of competent
jurisdiction requiring the termination of the Executive's employment by the
Company. Notwithstanding the foregoing, Just Cause shall not be deemed to exist
unless there shall have been delivered to the Executive a copy of a resolution
duly adopted by the affirmative vote of not less than a majority of the entire
membership of the Board at a meeting of the Board called and held for the
purpose (after reasonable notice to the Executive and an opportunity for the
Executive to be heard before the Board), finding that in the good faith opinion
of the Board the Executive was guilty of conduct described above and specifying
the particulars thereof. Prior to holding a meeting at which the Board is to
make a final determination whether Just Cause exists, if the Board determines in
good faith at a meeting of the Board, by not less than a majority of its entire
membership, that there is probable cause for it to find that the Executive was
guilty of conduct constituting Just Cause as described above, the Board may
suspend the Executive from his duties hereunder for a reasonable period of time
not to exceed fourteen (14) days pending a further meeting at which the
Executive shall be given the opportunity to be heard before the Board. For
purposes of this subparagraph, no act or failure to act, on the Executive's part
shall be considered "willful" unless done, or omitted to be done, by him not in
good faith without reasonable believe that his action or omission was in the
best interest of the Company and the Bank. Upon a finding of Just Cause, the
Board shall deliver to the Executive a Notice of Termination, as more fully
described in Section 9 below.
9. NOTICE
(a) Any purported termination by the Company or by Executive shall
be communicated by Notice of Termination to the other party hereto. For purposes
of this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(b) "Date of Termination" shall mean (A) if Executive's employment
is terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that he shall not have returned to the performance of his duties
on a full-time basis during such thirty (30) day period), and (B) if his
employment is terminated for any other reason, the date specified in the Notice
of Termination (which, except in the case of a termination for Just Cause, shall
not be less than thirty (30) days from the date such Notice of Termination is
given). In the event of termination for Just Cause, termination shall be
immediate upon the receipt of a Notice of Termination.
7
(c) If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, except upon the voluntary
termination by Executive in which case the Date of Termination shall be the date
specified in the Notice, the Date of Termination shall be the date on which the
dispute is finally determined, either by mutual written agreement of the
parties, by a binding arbitration award, or by a final judgment, order or decree
of a court of competent jurisdiction (the time for appeal having expired and no
appeal having been perfected) and provided further that the Date of Termination
shall be extended by a notice of dispute only if such notice is given in good
faith and the party giving such notice pursues the resolution of such dispute
with reasonable diligence. Notwithstanding the pendency of any such dispute,
except in the event of termination for Just Cause, the Bank will continue to pay
Executive his full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, Base Salary) and continue
Executive as a participant in all compensation, benefit and insurance plans in
which he was participating when the notice of dispute was given, until the
dispute is finally resolved in accordance with this Agreement, provided such
dispute is resolved within the term of this Agreement. If such dispute is not
resolved within the term of the Agreement, the Bank shall not be obligated, upon
final resolution of such dispute, to pay Executive compensation and other
payments accruing beyond the term of the Agreement. Amounts paid under this
Section following Notice of Termination shall be offset against or reduce any
other amounts due under this Agreement.
10. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement
shall be subject to Executive's compliance with paragraph (b) of this Section
during the term of this Agreement and for one (1) full year after the expiration
or termination hereof.
(b) Executive shall, upon reasonable notice, furnish such
information and assistance to the Bank as may reasonably be required by the Bank
in connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party.
11. ADDITIONAL PAYMENTS RELATED TO A CHANGE IN CONTROL
(a) Upon the occurrence of an Event of Termination, Executive
shall be entitled to receive an amount payable by the Company as set forth
herein, reduced by any such payments actually made by the Bank.
(b) In addition, in each calendar year that Executive is entitled
to receive payments or benefits under the provisions of the this Agreement
and/or a Company or Bank sponsored employee benefit plan, the independent
accountants of the Company shall determine if an excess parachute payment (as
defined in Section 4999 of the Code) exists. Such determination shall be made
after taking into account any reductions permitted pursuant to Section 280G of
the Code and the regulations thereunder. Any amount determined to be an excess
parachute payment after taking into account such reductions shall be hereafter
referred to as the "Initial Excess Parachute Payment." As soon as practicable
after a Change in Control, the Initial Excess Parachute Payment shall be
determined. For purposes of this determination, Executive shall be deemed to pay
federal income taxes at the highest marginal rate of federal income tax
(including, but not
8
limited to, the Alternative Minimum Tax under Code Sections 55-59, if
applicable) and state and local income tax, if applicable, at the highest
marginal rate of taxation in the state and locality of Executive's residence on
the date such payment is payable, net of the maximum reduction in the federal
income taxes which could be obtained from any available deduction of such state
and local taxes. Any determination by the independent accountants shall be
binding on the Company and Executive. Within five (5) days after such
determination, the Company shall pay Executive, subject to applicable
withholding requirements under applicable state or federal law an amount equal
to:
(i) twenty percent (20%) of the Initial Excess Parachute
Payment (or such other amount equal to the tax
imposed under Section 4999 of the Code), and
(ii) such additional amount (tax allowance) as may be
necessary to compensate Executive for the payment by
Executive of state and federal income and excise
taxes on the payment provided under paragraph (b)(i)
above and on any payments under this paragraph
(b)(ii). In computing such tax allowance, the payment
to be made under paragraph (b)(i) shall be multiplied
by the "gross up percentage" ("GUP"). The GUP shall
be determined as follows:
Tax Rate
GUP = ---------------
1- Tax Rate
The Tax Rate for purposes of computing the GUP shall be the highest marginal
federal and state income and employment-related tax rate, including any
applicable excise tax rate, applicable to Executive in the year in which the
payment under paragraph (b)(i) is made.
(c) Notwithstanding the foregoing, if it shall subsequently be
determined in a final judicial determination or a final administrative
settlement to which Executive is a party that the excess parachute payment as
defined in Section 4999 of the Code, reduced as described above, is different
from the Initial Excess Parachute Payment (such different amount being hereafter
referred to as the "Determinative Excess Parachute Payment") then the Company's
independent accountants shall determine the amount (the "Adjustment Amount")
Executive must pay to the Company or the Company must pay to Executive in order
to put Executive (or the Company, as the case may be) in the same position as
Executive (or the Company, as the case may be) would have been if the Initial
Excess Parachute Payment had been equal to the Determinative Excess Parachute
Payment. In determining the Adjustment Amount, the independent accountants shall
take into account any and all taxes (including any penalties and interest) paid
by or for Executive or refunded to Executive or for Executive's benefit. As soon
as practicable after the Adjustment Amount has been so determined, the Company
shall pay the Adjustment Amount to Executive or Executive shall repay the
Adjustment Amount to the Company, as the case may be. The purpose of this
paragraph is to assure that (i) Executive is not reimbursed more for the golden
parachute excise tax than is necessary to make him whole, and (ii) if it is
subsequently determined that additional golden parachute excise tax is owed by
him, additional reimbursement payments will be made to him to make him whole for
the additional excise tax.
9
(d) In each calendar year that Executive receives payments or
benefits under this Agreement and/or a Company or Bank sponsored employee
benefit plan, Executive shall report on his state and federal income tax returns
such information as is consistent with the determination made by the independent
accountants of the Company as described above. The Company shall indemnify and
hold Executive harmless from any and all losses, costs and expenses (including
without limitation, reasonable attorney's fees, interest, fines and penalties)
that Executive incurs as a result of so reporting such information. Executive
shall promptly notify the Company in writing whenever Executive receives notice
of the institution of a judicial or administrative proceeding, formal or
informal, in which the federal tax treatment under Section 4999 of the Code of
any amount paid or payable under this Section is being reviewed or is in
dispute. The Company shall assume control at its expense over all legal and
accounting matters pertaining to such federal tax treatment (except to the
extent necessary or appropriate for Executive to resolve any such proceeding
with respect to any matter unrelated to amounts paid or payable pursuant to this
Agreement). Executive shall cooperate fully with the Company in any such
proceeding. Executive shall not enter into any compromise or settlement or
otherwise prejudice any rights the Company may have in connection therewith
without prior consent of the Company.
12. NON-COMPETITION
(a) Upon any termination of Executive's employment hereunder,
other than a termination (whether voluntary or involuntary) following a Change
in Control), as a result of which the Company is paying Executive benefits under
Section 6 of this Agreement, Executive agrees not to compete with the Bank
and/or the Company for a period of one (1) year following such termination
within twenty-five (25) miles of any existing branch of the Bank or any
subsidiary of the Company or within twenty-five (25) miles of any office for
which the Bank, the Company or a Bank subsidiary of the Company has filed an
application for regulatory approval to establish an office, determined as of the
effective date of such termination, except as agreed to pursuant to a resolution
duly adopted by the Board. Executive agrees that during such period and within
said area, cities, towns and counties, Executive shall not work for or advise,
consult or otherwise serve with, directly or indirectly, any entity whose
business materially competes with the depository, lending or other business
activities of the Bank and/or the Company. The parties hereto, recognizing that
irreparable injury will result to the Bank and/or the Company, its business and
property in the event of Executive's breach of this Subsection 12(a) agree that
in the event of any such breach by Executive, the Bank and/or the Company will
be entitled, in addition to any other remedies and damages available, to an
injunction to restrain the violation hereof by Executive, Executive's partners,
agents, servants, employers, employees and all persons acting for or with
Executive. Executive represents and admits that Executive's experience and
capabilities are such that Executive can obtain employment in a business engaged
in other lines and/or of a different nature than the Bank and/or the Company,
and that the enforcement of a remedy by way of injunction will not prevent
Executive from earning a livelihood. Nothing herein will be construed as
prohibiting the Bank and/or the Company from pursuing any other remedies
available to the Bank and/or the Company for such breach or threatened breach,
including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of
the business activities and plans for business activities of the Company and
affiliates thereof, as it may exist
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from time to time, is a valuable, special and unique asset of the business of
the Company. Executive will not, during or after the term of his employment,
disclose any knowledge of the past, present, planned or considered business
activities of the Company or affiliates thereof to any person, firm,
corporation, or other entity for any reason or purpose whatsoever (except for
such disclosure as may be required to be provided to any federal banking agency
with jurisdiction over the Company or Executive). Notwithstanding the foregoing,
Executive may disclose any knowledge of banking, financial and/or economic
principles, concepts or ideas which are not solely and exclusively derived from
the business plans and activities of the Company, and Executive may disclose any
information regarding the Bank or the Company which is otherwise publicly
available. In the event of a breach or threatened breach by Executive of the
provisions of this Section, the Company will be entitled to an injunction
restraining Executive from disclosing, in whole or in part, the knowledge of the
past, present, planned or considered business activities of the Company or
affiliates thereof, or from rendering any services to any person, firm,
corporation, other entity to whom such knowledge, in whole or in part, has been
disclosed or is threatened to be disclosed. Nothing herein will be construed as
prohibiting the Company from pursuing any other remedies available to the
Company for such breach or threatened breach, including the recovery of damages
from Executive.
13. SOURCE OF PAYMENTS; NO DUPLICATION OF PAYMENTS
(a) All payments provided in this Agreement shall be timely paid
in cash or check from the general funds of the Company.
(b) Notwithstanding any provision herein to the contrary, to the
extent that payments and benefits, as provided by this Agreement, are paid to or
received by Executive from the Bank, such compensation payments and benefits
paid by the Bank will be subtracted from any amount due Executive under this
Agreement. Payments pursuant to this Agreement shall be paid by the Company
and/or the Bank and shall be allocated in proportion to the level of activity
and the time expended on such activities by Executive as determined by the
Company and the Bank on a quarterly basis.
14. NO EFFECT EMPLOYEE BENEFITS PLANS OR PROGRAMS
The termination of Executive's employment during the term of this
Agreement or thereafter, whether by the Company or by Executive, shall have no
effect on the vested rights of Executive under the Company's or 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
other employee benefit plans or programs, or compensation plans or programs in
which Executive was a participant.
15. REQUIRED REGULATORY PROVISIONS
(a) Notwithstanding anything herein contained to the contrary, any
payments to Executive by the 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 the
regulations promulgated thereunder in 12 C.F.R. Part 359.
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(b) The Company may terminate the Executive's employment at any
time and for any reason, but any termination by the Company, other than
Termination for Cause, shall not prejudice Executive's right to compensation or
other benefits under this Agreement.
16. NO ATTACHMENT
(a) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit
of, Executive and the Bank and their respective successors and assigns.
17. ENTIRE AGREEMENT; MODIFICATION AND WAIVER
(a) This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and supercedes 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.
(b) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(c) No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future as to any act other
than that specifically waived.
18. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
19. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
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20. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Delaware
but only to the extent not superseded by federal law.
21. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators, one of whom shall be selected by the Company, one of whom
shall be selected by Executive and the third of whom shall be selected by the
other two arbitrators. The panel shall sit in a location within fifty (50) miles
from the location of the Company, in accordance with the rules of the Judicial
Mediation and Arbitration Systems (JAMS) then in effect. Judgment may be entered
on the arbitrators award in any court having jurisdiction; provided, however,
that Executive shall be entitled to seek specific performance of his right to be
paid until the Date of Termination during the pendency of any dispute or
controversy arising under or in connection with this Agreement.
22. PAYMENT OF LEGAL FEES
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Company, provided that the dispute or interpretation has
been settled by Executive and the Company or resolved in Executive's favor.
23. INDEMNIFICATION
During the term of this Agreement, the Company shall provide Executive
(including his heirs, executors and administrators) with coverage under a
standard directors and officers liability insurance policy at its expense, and
shall indemnify Executive (and his heirs, executors and administrators) to the
fullest extent permitted under Delaware law against all expenses and liabilities
reasonably incurred by him in connection with or arising out of any action, suit
or proceeding in which he may be involved by reason of his having been a
director or officer of the Company (whether or not he continues to be a director
or officer at the time of incurring such expenses or liabilities), such expenses
and liabilities to include, but not be limited to, judgments, court costs and
attorneys fees and the cost of reasonable settlements (such settlements must be
approved by the Board of Directors of the Company). If such action, suit or
proceeding is brought against Executive in his capacity as an officer or
director of the Company, however, such indemnification shall not extend to
matters as to which Executive is finally adjudged to be liable for willful
misconduct in the performance of his duties.
24. SUCCESSOR TO THE COMPANY
The Company shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or the Company, expressly
and unconditionally to assume and agree to perform the Company's obligations
under this Agreement, in the same manner and to the same extent that the Company
would be required to perform if no such succession or assignment had taken
place.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURES
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and Executive has signed this Agreement,
on the day and date first above written.
ATTEST: INVESTORS BANCORP, INC.
By:
--------------------------------- ---------------------------------
Secretary
WITNESS: EXECUTIVE:
By:
--------------------------------- ---------------------------------
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