EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated as of October 3,
1996, is made by and between Long Island Bancorp, Inc., a Delaware corporation,
having its principal offices at 000 Xxx Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000
(the "Corporation"), and Xx. Xxxxx X. Xxxxxx, residing at 0 Xxxxxxxx Xxxxx,
Xxxxxx Xxxx, Xxx Xxxx 00000 (the "Executive").
RECITALS
The Corporation desires to employ the Executive as Executive Vice
President of the Corporation, and to enter into an employment agreement
embodying the terms of such relationship.
The Executive is willing to be employed as Executive Vice
President of the Corporation on the terms set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and for other good and valuable consideration, the Corporation
and the Executive hereby agree as follows.
1. DEFINITIONS.
1.1 "AFFILIATE" means any person or entity of any kind effectively
controlling, effectively controlled by or effectively under common control with
the Corporation, including, without limitation, The Long Island Savings Bank,
FSB (the "Bank").
1.2 "BOARD" means the board of directors of the Corporation.
1.3 "CAUSE" means termination due to the Executive's (a) personal
dishonesty, (b) incompetence, (c) willful misconduct, (d) breach of fiduciary
duty involving personal profit, (e) intentional failure to perform stated
duties, (f) willful violation of any law, rule or regulation (other than traffic
violations or similar offenses), or final cease-and-desist order, or (g)
material breach of any provision of this Agreement.
1.4 "CHANGE IN CONTROL" means, after the date of the Agreement, (a) a
change in control of the Corporation and/or the Bank of a nature that would be
required to be reported in response to Item 1 of the current report on Form 8-K,
as in
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8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); (b) a change
in control of the Bank within the meaning of 12 U.S.C. Section 1817(i), the
Change in Bank Control Act, and 12 C.F.R. Section 574.4 of the Acquisition of
Control of Savings Association regulations of the Office of Thrift Supervision;
(c) individuals who constitute the Board as of the date of this Agreement (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 of
this Agreement whose election was approved by a vote of at least three-quarters
of the directors then comprising the Incumbent Board, or whose nomination for
election by the Corporation's shareholders was approved by the Corporation's
nominating committee then serving under the Board, shall be, for purposes of
this clause (c), considered as though he or she was a member of the Incumbent
Board (but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of either an actual or threatened
election contest (as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies or consents); (d) approval by the shareholders of the Bank and/or the
Corporation, as the case may be, of a reorganization, merger or consolidation,
or the consummation of any such reorganization, merger or consolidation, other
than a reorganization, merger or consolidation with respect to which all or
substantially all of the individuals and entities who were the beneficial
owners, immediately prior to such reorganization, merger or consolidation, of
the Voting Interest in the Bank and/or the Corporation, as the case may be,
beneficially own, directly or indirectly, immediately after such reorganization,
merger or consolidation more than 80% of the Voting Interest of the corporation
or other entity resulting from such reorganization, merger or consolidation in
substantially the same proportions as their respective ownership, immediately
prior to such reorganization, merger or consolidation, of the Voting Interest in
the Bank and/or the Corporation, as the case may be; (e) approval by the
shareholders of the Bank and/or the Corporation, as the case may be, of (i) a
complete liquidation or dissolution of the Bank and/or the Corporation, or (ii)
the sale or other disposition of all or substantially all of the assets of the
Bank and/or the Corporation or the occurrence of any such liquidation,
dissolution, sale or other disposition, other than, in any case, to a
Subsidiary, directly or indirectly, of the Corporation or any Affiliate; and/or
(f) the solicitation of proxies from shareholders of the Corporation by someone
other than the current management of the Corporation and without the approval of
the Board, seeking shareholder approval of a plan of reorganization, merger or
consolidation of the Bank and/or the Corporation with one or more corporations
as a result of which the shareholders' interests in the Bank and/or the
Corporation, as the case may be, are actually exchanged for or converted into
securities not issued by the Bank or the Corporation, as the case may be. No
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failure on the part of the Executive to exercise any rights upon the occurrence
of a Change in Control shall be deemed a waiver of or otherwise impair the
rights of the Executive in respect of any subsequent events or circumstances
constituting a Change in Control
1.5 "CODE" means the Internal Revenue Code of 1986, as amended, and
as in effect from time to time, and/or any successor code thereto.
1.6 "DATE OF TERMINATION" means the date specified in the Notice of
Termination (as defined in Section 6.8 of this Agreement); PROVIDED, HOWEVER,
that if, within thirty (30) days after any Notice of Termination is given, the
party receiving such Notice of Termination notifies the other party in writing
that a dispute exists concerning the termination, 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, including all
appeals, unless the time for appeal therefrom has expired and no appeal has been
perfected; PROVIDED, FURTHER, HOWEVER, that the Date of Termination shall (a) in
no case be later than the date on which the Term of Employment expires, and (b)
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.
1.7 "GOOD REASON" means, and shall be deemed to exist if, without the
written consent of the Executive, (a) the Corporation fails to appoint or
reappoint the Executive as Executive Vice President of the Corporation, (b)
there occurs any reduction of Base Salary or material reduction in other
benefits or any material change by the Corporation to the Executive's function,
duties, or responsibilities in effect on the date hereof and/or as set forth in
Section 4.1 of this Agreement, which change would cause the Executive's position
with the Corporation to become one of lesser responsibility, importance, or
scope from the position and attributes thereof in effect on the date hereof
and/or as set forth in Section 4.1 of this Agreement (and any such material
change shall be deemed a continuing breach of this Agreement), (c) there occurs
any material breach of this Agreement by the Corporation, (d) a Change in
Control occurs, or (e) the Corporation, if and after a Suspension for Disability
(as defined in Section 6.2(a)) occurs and after a Change in Control occurs,
fills the Executive's position (in the manner set forth in Section 6.2(b) of
this Agreement).
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1.8 "PARENT" means any corporation which has a direct or indirect
legal or beneficial ownership interest in the Corporation, but only if any such
corporation owns or controls, directly or indirectly, securities possessing at
least 50% of the total combined voting power of all classes of securities of the
Corporation.
1.9 "SUBSIDIARY" means any corporation (other than the Corporation)
in which the Corporation or any Parent has a direct or indirect legal or
beneficial ownership interest, but only if the Corporation or the Parent, as the
case may be, owns or controls, directly or indirectly, securities possessing at
least 50% of the total combined voting power of all classes of securities in any
such corporation.
1.10 "RETIREMENT" means the termination of the Executive's employment
with the Corporation for any reason by the Executive at any time after the
Executive attains age 65.
1.11 "VOTING INTEREST" means securities of any class or classes or
other ownership interests having general voting power under ordinary
circumstances to elect members of a board of directors or trustees of any
entity.
2. EMPLOYMENT.
2.1 GENERAL. Subject to the terms and provisions set forth in this
Agreement, the Corporation, during the Term of Employment, agrees to continue to
employ the Executive as Executive Vice President of the Corporation and the
Executive hereby accepts such continued employment.
2.2 OTS SUSPENSION. If the Executive is suspended from office and/or
temporarily prohibited from participating in the conduct of the Bank's affairs
by a notice served under Section 8(e)(3) or (g)(1) of the Federal Deposit
Insurance Act (12 U.S.C. Sections 1818(e)(3) and (g)(1)), the Corporation's
obligations under this Agreement shall be suspended as of the date of service,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Corporation may in its discretion (i) pay the Executive all or
part of the compensation withheld while its contract obligations were suspended,
and (ii) reinstate (in whole or in part) any of its obligations which were
suspended.
3. TERM OF EMPLOYMENT.
3.1 TERM. The term of employment under this Agreement shall commence
as of October 3, 1996 (the "Commencement Date") and, unless extended as provided
below or earlier terminated by the Corporation or the Executive under Section 6
of this Agreement, shall continue until the third anniversary of the
Commencement Date (the "Term of Employment"). The Term of
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Employment shall automatically be extended on each anniversary of the
Commencement Date for an additional one year period unless, not later than six
months prior to the next such anniversary, either party to this Agreement shall
give written notice to the other that he or it does not wish to extend or
further extend the Term of Employment beyond its then already automatically
extended term, if any.
3.2 OTS REMOVAL. Notwithstanding anything to the contrary in this
Agreement, if the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C.
Sections 1818(e)(4) or (g)(1)), all obligations of the Corporation under this
Agreement shall terminate as of the effective date of the order, but vested
rights of the Corporation and/or the Executive, if any, shall not be affected.
4. POSITIONS, RESPONSIBILITIES AND DUTIES.
4.1 POSITIONS AND DUTIES. During the Term of Employment, the
Executive shall be employed and shall serve as Executive Vice President of the
Corporation. In such position(s), the Executive shall have the duties,
responsibilities and authority as determined and designated from time to time by
the Board. The Executive shall serve under the direction and supervision of
the Corporation's chief executive officer and shall report only to such chief
executive officer or his designees. Notwithstanding the above, the Executive
shall not be required to perform any duties and responsibilities (a) which would
result in a non-compliance with or violation of any applicable law, regulation,
regulatory bulletin, and/or any other regulatory requirement or (b) on a regular
basis in any locations outside the counties of Nassau, Suffolk or the City of
New York unless agreed upon by the Executive.
4.2 ATTENTION TO DUTIES AND RESPONSIBILITIES. During the Term of
Employment, the Executive shall, except for periods of absence occasioned by
illness, vacation in accordance with Section 5.6, and reasonable leaves of
absence in accordance with the practices of the Corporation and the Bank as of
the date of this Agreement, devote substantially all of his business time to the
business and affairs of the Corporation and the Bank and the Executive shall use
his best efforts, business skills, ability and fidelity to perform faithfully
and efficiently the duties and responsibilities contemplated by this Agreement;
PROVIDED, HOWEVER, that the Executive shall be allowed, to the extent such
activities do not present a conflict or substantially interfere with the
performance by the Executive of his duties and responsibilities hereunder, (a)
to manage the Executive's personal affairs, and (b)(i) to serve on boards or
committees of civic or charitable organizations or trade associations, and (ii)
after obtaining the consent of the Board, as evidenced by a
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written resolution of the Board and under the terms and conditions specified in
any such resolution, to serve on the boards of directors or trustees of
companies or other organizations and associations; PROVIDED, FURTHER, HOWEVER,
that all offices or positions which the Executive currently holds or has held
prior to the date of this Agreement and those set forth on Exhibit "A", annexed
hereto are designated as currently consented to positions.
5. COMPENSATION AND OTHER BENEFITS.
5.1 BASE SALARY. During the Term of Employment, the Executive shall
receive a base salary of $225,000 per annum ("Base Salary") payable in
accordance with the Corporation's normal payroll practices.
5.2 ANNUAL BONUS. During the Term of Employment, the Executive shall
be entitled to participate in an equitable manner with other executive officers
of the Corporation in such discretionary bonus payments or awards as may be
authorized, declared, and paid by the Board to the Corporation's executive
employees; PROVIDED, HOWEVER, that the annual bonus paid to the Executive
following a Change in Control shall not be less than the highest annual bonus
paid during the Term of Employment. No other compensation or additional
benefits provided for in this Agreement shall be deemed a substitute for the
Executive's right, if any, to receive such bonuses if, when and as declared by
the Board.
5.3 INCENTIVE, RETIREMENT, AND SAVINGS PLANS. During the Term of
Employment, the Executive shall participate in all incentive, pension,
retirement, savings and other employee benefit plans and programs, if any,
maintained from time to time by the Corporation and/or the Bank for the benefit
of senior executives and/or other employees of the Corporation and/or the Bank.
5.4 WELFARE BENEFIT PLANS. During the Term of Employment, the
Executive, the Executive's spouse, if any, and their eligible dependents, if
any, shall participate in and be covered by all the welfare benefit plans and
programs, if any, maintained by the Corporation and/or the Bank for the benefit
of senior executives and/or other employees of the Corporation and/or the Bank.
5.5 EXPENSE REIMBURSEMENT. During the Term of Employment, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses, including reasonable business travel expenses, incurred by the
Executive in performing his duties and responsibilities hereunder in accordance
with the policies and procedures of the Corporation as in effect at the time the
expense was incurred, as the same may be changed from time to time.
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5.6 VACATION AND FRINGE BENEFITS. During the Term of Employment, the
Executive shall be entitled to five weeks paid vacation each calendar year at
such times which do not materially interfere with the performance of the
Executive's duties hereunder. In addition, during the Term of Employment, the
Executive shall be eligible to benefit from such fringe benefits and
perquisites, if any, in accordance with the policies of the Corporation and as
in effect and provided from time to time to senior executives of the Corporation
and/or the Bank. Notwithstanding the above, the Executive, during the Term of
Employment, shall retain, pursuant to current policy and practice of the
Corporation and/or the Bank, all privileges, if any, including club memberships
and automobile usage to which he is entitled on the date of this Agreement.
6. TERMINATION.
6.1 TERMINATION DUE TO DEATH. In the event of the Executive's death
during the Term of Employment, the Term of Employment shall thereupon end and
his estate or other legal representative, as the case may be, shall, subject to
Sections 2.2, 3.2, 6.11, and 6.12 of this Agreement, only be entitled to:
(a)(i)(A) Base Salary continuation at two-thirds (2/3) of the rate in
effect (as provided in Section 5.1 of this Agreement) on the Date of
Termination for a three-month period commencing on such Date of
Termination, or (B), if the Board so determines in its sole discretion and
in lieu of such three-month salary continuation described above in (A), a
lump sum payment equal in amount to the present value of such Base Salary
continuation (reasonably determined using a discount rate equal to the most
recent quote available for the three-month United States Treasury Xxxx rate
on the Date of Termination) payable within thirty business days after the
Date of Termination, and (ii) a pro-rata annual bonus for the fiscal year
in which such termination occurs, such pro-rata bonus amount to be
(I) pro-rated based on the number of calendar days transpired during the
fiscal year of the Corporation (prior to the Date of Termination) in which
such termination occurs over 365, (II) determined in good faith by the
Board (but in its sole discretion), and (III) if any such bonus is
payable, paid on or about the same date that the annual bonus amounts
payable in respect of such fiscal year, if any, to the senior executives of
the Corporation and/or the Bank are actually paid to them;
(b) any Base Salary accrued to the Date of Termination or any bonus
actually awarded, but not yet paid as of the Date of Termination;
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(c) reimbursement for all expenses (under Section 5.5) incurred as of
the Date of Termination, but not yet paid as of the Date of Termination;
(d) payment of the per diem value of any unused vacation days
accruing during the Term of Employment and the unused, unaccrued portion of
any vacation days available through the end (but not beyond) of the
calendar year of the Corporation in which such termination occurs;
(e) any other compensation and benefits as may be provided in
accordance with the terms and provisions of any applicable plans and
programs, if any, of the Corporation or any Subsidiary; and
(f) any rights to indemnification in accordance with Section 11 of
this Agreement.
6.2 SUSPENSION FOR DISABILITY.
(a) If, during the Term of Employment, the Executive shall have been
absent from his duties hereunder on a full-time basis due to physical or mental
illness for six (6) consecutive months, the Corporation may give thirty (30)
days written notice of potential suspension. If the Executive shall not have
returned to the full-time performance of his duties within such 30-day period,
the Corporation may suspend the Executive's employment for "Disability" (a
"Suspension for Disability").
(b) If a Suspension for Disability occurs during the Term of
Employment, the Corporation will pay the Executive a bi-weekly payment equal to
two-thirds (2/3) of the Executive's bi-weekly rate of Base Salary on the
effective date of the Suspension for Disability. These payments shall commence
on the effective date of the Executive's Suspension for Disability and will end
on the earlier of (i) the date the Executive returns to full-time employment
hereunder; (ii) the Executive's equivalent full-time employment by another
employer; (iii) the Executive's retirement; (iv) the Executive's death; or (v)
the expiration or earlier end of the Term of Employment (the "Term of
Suspension"). After a Suspension for Disability occurs, the Corporation shall
be free to fill the Executive's position(s), but such action by the Corporation,
shall constitute Good Reason if it occurs after a Change in Control. Upon the
Executive being able to return to full-time employment hereunder before the
expiration of the Term of Employment, the Executive shall be offered an
equivalent available position and otherwise be subject to the provisions of this
Agreement. The disability payments hereunder will be in addition to any benefit
payable from any qualified or nonqualified retirement plans or programs
maintained by the Corporation and/or the Bank but will be reduced by payments
received by the Executive on account of such disability under any
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long-term disability plan maintained for the Corporation's and/or the Bank's
employees.
(c) During the Term of Suspension, the Corporation will cause to be
continued life and health coverage and such other benefits substantially
identical to the coverage and benefits maintained by the Corporation and/or the
Bank for the Executive prior to the occurrence of any Suspension for Disability.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation (except as otherwise provided in Section 6.2(b) above), accrued
benefits or pension granted or accruing to the Executive during the Term of
Suspension. Nothing in this Section 6.2 shall abrogate or limit other
provisions of this Agreement granting rights to the Executive or the Executive's
spouse or the Executive's estate following death, retirement or termination, if
applicable.
6.3 TERMINATION BY THE BOARD FOR CAUSE. The Board may terminate the
Executive's employment hereunder for Cause, as provided below. If the Board
terminates the Executive's employment hereunder for Cause, the Term of
Employment (if not already expired) shall thereupon end as set forth below and
the Executive shall, subject to Sections 2.2, 3.2, 6.11, and 6.12 of this
Agreement, only be entitled to:
(a) Base Salary up to and including the Date of Termination;
(b) any bonus actually awarded, but not yet paid as of the Date of
Termination;
(c) reimbursement for all expenses (under Section 5.5) incurred as of
the Date of Termination, but not yet paid as of the Date of Termination;
(d) payment of the per diem value of any unused vacation days
accruing during the Term of Employment and, to the extent not prohibited by
applicable law, regulation, regulatory bulletin, and/or any other
regulatory requirement, as the same exists or may hereafter be promulgated
or amended, the unused, unaccrued portion of any vacation days available
through the end (but not beyond) of the calendar year of the Corporation in
which such termination occurs;
(e) to the extent not prohibited by applicable law, regulation,
regulatory bulletin, and/or any other regulatory requirement, as the same
exists or may hereafter be promulgated or amended, any other compensation
and benefits as may be provided in accordance with the terms and
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provisions of any applicable plans and programs, if any, of the Corporation
or any Subsidiary; and
(f) any rights to indemnification in accordance with Section 11 of
this Agreement.
In each case, in determining Cause the alleged acts or omissions of the
Executive shall be measured against standards generally prevailing in the
savings institution industry and the ultimate existence of Cause must be
confirmed by not less than 51% of the Incumbent Board (as constituted in
accordance with Section 1.4(c) of this Agreement) at a meeting called for such
purpose prior to any termination therefor; PROVIDED, HOWEVER, that it shall be
the Corporation's burden to prove the alleged facts and omissions and the
prevailing nature of the standards the Corporation shall have alleged are
violated by such acts and/or omissions of the Executive. In the event of such a
confirmation by 51% or more of the Incumbent Board, the Corporation shall notify
the Executive that the Corporation intends to terminate the Executive's
employment for Cause under this Section 6.3 (the "Confirmation Notice"). The
Confirmation Notice shall specify the act, or acts, upon the basis of which the
Incumbent Board has confirmed the existence of Cause and the Confirmation Notice
must be delivered to the Executive within fourteen (14) days after the Incumbent
Board so confirms the existence of Cause. If the Executive notifies the
Corporation in writing (the "Opportunity Notice") within thirty (30) days after
the Executive has received the Confirmation Notice, the Executive (together with
counsel) shall be provided one opportunity to meet with the Incumbent Board (or
a sufficient quorum thereof) to discuss such act or acts. Such opportunity to
meet with the Incumbent Board shall be fixed and shall occur on a date selected
by the Incumbent Board, such date being not less than ten (10) nor more than
thirty (30) days after the Corporation receives the Opportunity Notice from the
Executive; PROVIDED, HOWEVER, that the Corporation may in good faith select a
later date if, and only if, such later date is necessary to convene a sufficient
quorum of the Incumbent Board to act in respect of the Executive's Opportunity
Notice. Such meeting shall take place at the principal offices of the
Corporation or such other location as agreed to by the Executive and the
Corporation. During the period commencing on the date the Corporation receives
the Opportunity Notice and ending on the date next succeeding the date on which
such meeting between the Incumbent Board (or a sufficient quorum thereof) and
the Executive is scheduled to occur, and not withstanding anything to the
contrary in this Agreement, the Executive shall be suspended from employment
with the Corporation (with pay, to the extent not prohibited by applicable law,
regulation, regulatory bulletin, and/or any other regulatory requirement, as the
same exists or may hereafter be promulgated or amended) and the Incumbent Board
may, during such suspension period, reasonably limit the Executive's access to
the principal offices of the Corporation or any of its assets. If the Incumbent
Board properly sets the date
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of such meeting and if the Incumbent Board (or a sufficient quorum thereof)
attends such meeting and in good faith does not rescind its confirmation of
Cause at such meeting or if the Executive fails to attend such meeting for any
reason, the Executive's employment by the Corporation shall, immediately upon
the closing of such meeting and the delivery to the Executive of the Notice of
Termination, be terminated for Cause under this Section 6.3. If the Executive
does not respond in writing to the Confirmation Notice in the manner and within
the time period specified in this Section 6.3, the Executive's employment with
the Corporation shall, upon the thirty-first day after the receipt by the
Executive of the Confirmation Notice, be terminated for Cause under this Section
6.3. In the event of any dispute hereunder, the Executive shall be entitled, to
the extent not prohibited by applicable law, regulation, regulatory bulletin,
and/or any other regulatory requirement, as the same exists or may hereafter be
promulgated or amended, until the earlier to occur of (i) the Date of
Termination, (ii) the expiration of the current stated Term of Employment, or
(iii) the resolution of such dispute to (A) be paid bi-weekly his then Base
Salary, and (B) continue to receive all other benefits; and there shall be no
reduction whatsoever of any amounts subsequently paid to the Executive upon
resolution of such dispute as a result of, or in respect to, such interim
payments or coverage. The procedure set forth in this Section 6.3 to determine
the existence of Cause shall at all times be subject to the requirements of
applicable law, regulation, regulatory bulletin or other regulatory
requirements.
6.4 TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. The Corporation
may terminate the Executive's employment hereunder at any time without Cause.
The Executive may terminate his employment hereunder for Good Reason at any time
by delivery of written notice to the Corporation within the six-month period
commencing after the occurrence of the Good Reason effective forty-five (45)
days after such written notice is delivered. If the Corporation terminates the
Executive's employment hereunder without Cause (other than due to Retirement,
death, Disability or the normal expiration of the full Term of Employment), or
if the Executive terminates his employment hereunder for Good Reason, the Term
of Employment shall thereupon end (if not already expired) and the Executive
shall, subject to Sections 2.2, 3.2, 6.11, and 6.12 of this Agreement, only be
entitled to:
(a) as liquidated damages, a cash lump sum equal to three (3) times
the Executive's "Highest Annual Compensation" (as herein defined). For
purposes of this Agreement, "Highest Annual Compensation" shall mean the
sum of (i) the highest per annum rate of Base Salary, and (ii) the
aggregate bonus amounts paid to the Executive (or which would have been
paid but for an election to defer payment to a later period), in respect of
any fiscal year of the Corporation at any time during the Term of
Employment;
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(b) any Base Salary accrued to the Date of Termination or any bonus
actually awarded, but not yet paid as of the Date of Termination;
(c) reimbursement for all expenses (under Section 5.5) incurred as of
the Date of Termination, but not yet paid as of the Date of Termination;
(d) payment of the per diem value of any unused vacation days
accruing during the Term of Employment and the unused, unaccrued portion of
any vacation days available through the end (but not beyond) of the
calendar year of the Corporation in which such termination occurs;
(e) continuation of the welfare benefits of the Executive, at the
level in effect (as provided for by Section 5.4 of this Agreement) on, and
at the same out-of-pocket cost to the Executive as of, the Date of
Termination for the three-year period commencing on the Date of Termination
(or, if such continuation is not permitted by applicable law or if the
Board so determines in its sole discretion, the Corporation shall provide
the economic equivalent in lieu thereof);
(f) any other compensation and benefits as may be provided in
accordance with the terms and provisions of any applicable plans or
programs, if any, of the Corporation or any Subsidiary; and
(g) any rights to indemnification in accordance with Section 11 of
this Agreement.
In the event of any dispute hereunder, the Executive shall be entitled until the
earlier to occur of (i) the Date of Termination, (ii) the expiration of the
current stated Term of Employment, or (iii) the resolution of such dispute to
(A) be paid bi-weekly his then Base Salary, and (B) continue to receive all
other benefits; and there shall be no reduction whatsoever of any amounts
subsequently paid to the Executive upon resolution of such dispute as a result
of, or in respect to, such interim payments or coverage.
6.5 VOLUNTARY TERMINATION. During the Term of Employment, the
Executive may effect, upon thirty (30) days prior written notice to the
Corporation, a Voluntary Termination of his employment hereunder and thereupon
the Term of Employment (if not already expired) shall end. A "Voluntary
Termination" shall mean a termination of employment by the Executive on his own
initiative other than (a) a termination due to death or Disability, (b) a
termination for Good Reason, (c) a termination due to Retirement, or (d) a
termination as a result of the normal expiration of the full Term of Employment.
A Voluntary
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Termination shall, subject to Sections 2.2, 3.2, 6.11, and 6.12 of this
Agreement, entitle the Executive only to all of the payments and benefits which
the Executive would be entitled to in the event of a termination of his
employment by the Corporation for Cause.
6.6 TERMINATION DUE TO RETIREMENT. The Executive may terminate the
Executive's employment hereunder due to Retirement upon thirty (30) days prior
written notice to the Corporation. If, during the Term of Employment, the
Executive's employment is so terminated due to Retirement, the Term of
Employment shall thereupon end and the Executive shall, subject to Sections 2.2,
3.2, 6.11, and 6.12 of this Agreement, only be entitled to:
(a) Base Salary up to and including the Date of Termination;
(b) any bonus actually awarded, but not yet paid as of the Date of
Termination;
(c) reimbursement for all expenses (under Section 5.5) incurred as of
the Date of Termination, but not yet paid as of the Date of Termination;
(d)(i) continuation of the Executive's welfare benefits (as described
in Section 5.4 of this Agreement) at the level in effect on the Date of
Termination for the one-year period following the termination of the
Executive's employment due to Retirement (or, if such continuation is not
permitted by applicable law or if the Board so determines in its sole
discretion, the Corporation shall provide the economic equivalent in lieu
thereof), and (ii) any other compensation and benefits as may be provided
in accordance with the terms and provisions of any applicable plans and
programs, if any, of the Corporation or any Subsidiary;
(e) payment of the per diem value of any unused vacation days
accruing during the Term of Employment and the unused, unaccrued portion of
any vacation days available through the end (but not beyond) of the
calendar year of the Corporation in which such termination occurs; and
(f) any rights to indemnification in accordance with Section 11 of
this Agreement.
6.7 NO MITIGATION; NO OFFSET. In the event of any termination of
employment under this Section 6, the Executive shall be under no obligation to
seek other employment or to mitigate damages and there shall be no offset
against any amounts due the Executive under this Agreement for any reason,
including, without limitation, on account of any remuneration attributable to
any subsequent employment that the Executive may obtain. Any amounts due under
this Section 6 are in the nature of severance
14
payments, or liquidated damages, or both, and are not in the nature of a
penalty.
6.8 NOTICE OF TERMINATION. Any termination of the Executive's
employment under this Section 6 requiring advance written notice shall be
communicated by a notice of termination to the other party hereto given in
accordance with Section 12.3 of this Agreement (the "Notice of Termination").
The Notice of Termination, in the case of a termination by the Corporation for
Cause, or a termination by the Executive for Good Reason, shall (a) indicate the
specific termination provision in this Agreement relied upon, and (b) set forth
in reasonable detail the dates, facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated.
6.9 CERTAIN FURTHER PAYMENTS BY THE CORPORATION.
6.9.1 TAX REIMBURSEMENT PAYMENT. Anything in this Agreement to
the contrary notwithstanding, in the event that any amount of benefit or other
entitlement paid, payable, or to be paid, or distributed, distributable, or to
be distributed to or with respect to the Executive by the Corporation, the Bank,
any Subsidiary, any Parent, any other Affiliate, or any other party or entity
(collectively, the "Covered Payments"), is or becomes, at any time, as a result
of (a) any Internal Revenue Service claims or assertions, or (b) Section 6.9.2
below or otherwise, subject to the excise tax imposed by or under Section 4999
of the Code (or any similar tax that may hereafter be imposed), and/or any
interest or penalties with respect to such excise tax (such excise tax, together
with such interest and penalties, are hereinafter collectively referred to as
the "Excise Tax"), the Corporation shall pay to the Executive at the time
specified in Section 6.9.5 below an additional amount (the "Tax Reimbursement
Payment") such that after payment by the Executive of all taxes (including,
without limitation, any interest or penalties imposed with respect to such
taxes), including, without limitation, any Excise Tax, imposed on or
attributable to the Tax Reimbursement Payment provided by this Agreement, the
Executive retains an amount of the Tax Reimbursement Payment equal to the sum of
(a) the amount of the Excise Tax imposed upon the Covered Payments, and (b) an
amount equal to the product of (i) any deductions disallowed for federal, state
or local income tax purposes because of the inclusion of the Tax Reimbursement
Payment in the Executive's adjusted gross income, and (ii) the highest
applicable marginal rate of federal, state or local income taxation,
respectively, for the calendar year in which the Tax Reimbursement Payment is
made or is to be made.
6.9.2 DETERMINING EXCISE TAX. Except as otherwise provided in
Section 6.9.1(a), for purposes of
15
determining whether any of the Covered Payments will be subject to the Excise
Tax and the amount of such Excise Tax,
(a) such Covered Payments will be treated as "parachute payments"
(within the meaning of Section 280G(b)(2) of the Code) and such payments in
excess of the Code Section 280G(b)(3) "base amount" shall be treated as
subject to the Excise Tax, unless, and except to the extent that, the
Corporation's independent certified public accountants (the "Accountants")
or legal counsel reasonably acceptable to the Executive, deliver timely,
upon the Executive's request, a written opinion, reasonably satisfactory to
the Executive's legal counsel, to the Executive that the Executive has a
reasonable basis to claim that the Covered Payments (in whole or in part)
(i) do not constitute "parachute payments", (ii) represent reasonable
compensation for services actually rendered (within the meaning of Section
280G(b)(4) of the Code) in excess of the "base amount" allocable to such
reasonable compensation, or (iii) such "parachute payments" are otherwise
not subject to such Excise Tax (with appropriate legal authority, detailed
analysis and explanation provided therein by the Accountants); and
(b) the value of any Covered Payments which are non-cash benefits or
deferred payments or benefits shall be determined by the Accountants in
accordance with the principles of Section 280G of the Code.
6.9.3 APPLICABLE TAX RATES AND DEDUCTIONS. For purposes of
determining the amount of the Tax Reimbursement Payment, the Executive shall be
deemed:
(a) to pay federal, state and/or local income taxes at the highest
applicable marginal rate of income taxation for the calendar year in which
the Tax Reimbursement Payment is made or is to be made, and
(b) to have otherwise allowable deductions for federal, state and
local income tax purposes at least equal to those disallowed due to the
inclusion of the Tax Reimbursement Payment in the Executive's adjusted
gross income.
6.9.4 SUBSEQUENT EVENTS. If, pursuant to a written opinion,
reasonably satisfactory to the Executive, of the Accountants (or legal counsel
reasonably acceptable to the Executive) delivered and addressed to the
Executive, the Excise Tax is subsequently determined on a reasonable basis and
in good faith (other than as a result of a tax contest) to be less than the
amount taken into account hereunder in calculating any Tax Reimbursement Payment
made, the Executive shall repay to the Corporation the portion of any prior Tax
Reimbursement Payment
16
that would not have been paid if such redetermined Excise Tax had been applied
in calculating such Tax Reimbursement Payment, plus interest on the amount of
such repayment at the mid-term discount rate provided in Section 1274(b)(2)(B)
of the Code. Notwithstanding the immediately foregoing sentence, if any portion
of the Tax Reimbursement Payment to be refunded to the Corporation has been paid
to any federal, state or local tax authority, repayment thereof shall not be
required until an actual refund or credit of such portion has been made to or
obtained by the Executive from such tax authority, and any interest payable to
the Corporation shall not exceed the interest received or credited to the
Executive by any such tax authority. The Executive shall be fully indemnified
by the Corporation for any out-of-pocket costs, expenses or fees attributable to
the filing of any refund or other claim. The Executive and the Corporation
shall mutually agree upon the course of action to be pursued (and the method of
allocating the expenses thereof) if any good faith claim for refund or credit
from such tax authority made by the Executive is denied.
Notwithstanding the immediately preceding paragraph, if, in the
written opinion of the Executive's tax advisors delivered to the Accountants and
the Corporation, the Excise Tax is later determined to exceed the amount taken
into account by the Accountants or legal counsel, as the case may be, hereunder
at the time any Tax Reimbursement Payment is made by reason of (i) manifest
error, (ii) any payment the existence or amount of which could not be or was not
determined or known about at the time of any Tax Reimbursement Payment, or (iii)
any determination, claim or assertion made by any tax authority that the Excise
Tax is or should be greater than the amount of such Excise Tax taken into
account previously by the Accountants or legal counsel, as the case may be, or
as otherwise previously determined, the Corporation shall make an additional Tax
Reimbursement Payment in respect of such excess Excise Tax (which Tax
Reimbursement Payment shall include, without limitation, any interest or
penalties payable with respect to such excess Excise Tax) at the time specified
in Section 6.9.5 below. With respect to this Section 6.9.4, if any such tax
authority makes such a determination, the Executive shall notify the Corporation
of such occurrence. If the Corporation obtains (at the Corporation's sole
expense) an opinion of legal counsel addressed, delivered and reasonably
satisfactory to the Executive that it is more likely than not that the Executive
would succeed in disputing such claim, assertion or determination of such tax
authority, the Executive shall, at the sole expense of the Corporation, make a
good faith effort to contest such claim, assertion or determination of such tax
authority in all relevant administrative proceedings (excluding any appeals
thereof); PROVIDED, HOWEVER, that if the Executive determines in good faith that
the continued contest of any such claim, assertion or determination with such
tax authority would have an adverse impact on his overall tax position (which
good faith
17
determination shall take into account the magnitude of the amounts involved),
then, upon receipt of notice by the Corporation from the Executive to that
effect, the Executive shall, without foregoing any right to receive any Tax
Reimbursement Payment described in this Section 6.9, have no further obligation
to pursue any such contest with any such tax authority. The Executive may, as a
condition to pursuing or commencing any contest described in this Section 6.9.4
in any proceedings (which proceedings shall be in a forum chosen at the sole
discretion of the Executive), require the Corporation to advance any amount of
tax required to be paid in order to pursue such contest. In conducting any
contest described in this Section 6.9.4, the Executive shall use his best
efforts to keep the Corporation advised and will permit the Corporation to
prepare and suggest appropriate responses and actions that may be reasonably
made or taken by the Executive. Notwithstanding the above, the decisions as to
such responses or actions shall be solely that of the Executive and the
Executive shall have the sole right to control the proceeding. The Corporation
shall bear all expenses of any proceeding relating to any contest described in
this Section 6.9.4, whether incurred by the Corporation or the Executive,
including, without limitation, all fees and disbursements of attorneys,
accountants and expert witnesses and any additional interest or penalties
applicable. Nothing contained in this Agreement shall under any circumstances
give the Corporation any right to examine the tax returns or any other records
of the Executive.
6.9.5 DATE OF PAYMENT. A Tax Reimbursement Payment, as provided
for in this Section 6.9, shall be paid to the Executive not later than 10
business days following the payment of any Covered Payments which are "parachute
payments" under Section 6.9.2 above; PROVIDED, HOWEVER, that any additional Tax
Reimbursement Payment payable to the Executive under Section 6.9.4 of this
Agreement shall be paid to the Executive not later than 15 business days
following the actual receipt by the Accountants and the Corporation of the
written opinion of the Executive's tax advisors, as provided for therein.
6.10 PAYMENT. Except as otherwise provided in this Agreement, any
payments to which the Executive shall be entitled to under this Section 6,
including, without limitation, any economic equivalent of any benefit, shall be
made, to the extent practicable, within five (5) business days following the
Date of Termination.
6.11 CORPORATION REGULATORY LIMITATIONS. Any payments made to the
Executive pursuant to this Agreement, or otherwise, are subject to and
conditioned upon their compliance with 12 U.S.C. Section 1828(k) and any
regulations promulgated thereunder.
18
6.12 OTHER REQUIRED PROVISIONS.
6.12.1 If the Bank is in default (as defined in Section 3(x)(1)
of the Federal Deposit Insurance Act), all obligations under this Agreement
shall terminate as of the date of default, but this Section 6.12.1 shall not
affect the vested rights of the Corporation and/or the Executive, if any.
6.12.2 All obligations under this Agreement shall be terminated,
except to the extent determined that continuation of this Agreement is necessary
for the continued operation of the Bank, (i) by the director, or his or her
designee, at the time the Federal Deposit Insurance Corporation or the
Resolution Trust Corporation enters into an agreement to provide assistance to
or on behalf of the Bank under the authority contained in Section 13(c) of the
Federal Deposit Insurance Act; or (ii) by the director, or his designee, at the
time the director, or his or her designee, approves a supervisory merger to
resolve problems related to operation of the Bank or when the Bank is determined
by such director to be in an unsafe or unsound condition. Any rights of the
parties that have already vested, however, shall not be affected by any such
actions.
6.13 POST-TERMINATION OBLIGATIONS. During the Term of Employment and
for one (1) full year after the expiration or termination thereof, the Executive
shall, upon reasonable notice, use his reasonable best efforts to cooperate with
the Corporation and/or the Bank by providing such information and assistance to
the Corporation and/or the Bank as may reasonably be required by the Corporation
and/or the Bank at the Corporation's expense in connection with any litigation
not commenced by or involving the Executive in which the Corporation and/or the
Bank or any of their Subsidiaries or Affiliates is, or may become, a party.
7. NON-EXCLUSIVITY OF RIGHTS; NON-EXTENSION SEVERANCE.
7.1 OTHER BENEFITS. Except as is otherwise specifically provided in
this Agreement, the Executive's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided or maintained by the
Corporation and/or the Bank, and for which the Executive may be eligible and
qualify, shall not be prevented or limited, and the Executive's rights under any
future agreements with the Corporation and/or the Bank and/or any Affiliate
thereof, including, without limitation, any stock option agreements shall not be
limited or prejudiced. Subject to Section 7.2 below, this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to the Executive
of a kind elsewhere provided. Except as otherwise specifically provided in this
Agreement, no provision of this Agreement shall be interpreted to mean or result
in the Executive receiving fewer benefits than those available to him without
reference to this Agreement.
19
7.2 NON-EXTENSION SEVERANCE. If (a)(i) the Executive's employment
hereunder is not terminated or suspended under Sections 6.1, 6.2, 6.3, 6.4, 6.5
or 6.6 of this Agreement prior to the expiration of the Term of Employment, or
(ii) any such termination or suspension of the Executive's employment is not
initiated prior to the expiration of the Term of Employment, (b) the Term of
Employment is not extended by the Corporation, and (c) the Executive's
employment with the Corporation terminates after the expiration of the Term of
Employment (other than for Cause), the Executive shall be entitled to receive,
in lieu of any severance payments or severance benefits under any other plan or
program maintained by the Corporation or any Affiliate, (1) Base Salary
continuation at the rate in effect (as provided in Section 5.1 of this
Agreement) as of the expiration of the Term of Employment, and (2) welfare
benefit continuation, at the level in effect (as provided for by Section 5.4 of
this Agreement) on, and at the same out-of-pocket cost to the Executive as of,
the expiration of the Term of Employment, in each case (1) and (2), for the
period ending six (6) months after the Executive's employment terminates.
Notwithstanding the above, if the Board determines in its sole discretion and in
lieu only of such Base Salary continuation in (1), a lump sum payment, equal to
the present value of such Base Salary continuation (reasonably determined using
the discount rate specified in Section 6.1(a)(1)), shall be paid to the
Executive within thirty (30) days after the date the Executive's employment
terminates. Notwithstanding anything to the contrary in this Section 7.2, if
(x) there occurs a Change in Control during the Term of Employment, (y) the Term
of Employment is not extended by the Corporation up to and/or through the second
anniversary of any such change of control, and (z) the Executive's employment
with the Corporation is subsequently terminated (other than for Cause), the
Executive, in lieu of the Base Salary and welfare benefits continuation under
this Section 7.2, shall be entitled to receive the payments and benefits set
forth in Section 6.4 of this Agreement.
8. RESOLUTION OF DISPUTES.
8.1 With the exception of proceedings for equitable relief brought
pursuant to this Section or Section 9.2 of this Agreement, any dispute or
controversy arising under or in connection with this Agreement may, at the
Executive's option, be settled exclusively by arbitration in Melville, Long
Island in accordance with the rules of the American Arbitration Association then
in effect and at the Corporation's expense. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; PROVIDED, HOWEVER, that the
Executive shall be entitled to seek specific performance in court 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
20
Agreement. If a claim for any payments or benefits under this Agreement or any
other provision of this Agreement is disputed by the Corporation and the
Executive, the Executive shall, to the extent and at such time or times as is
not prohibited by applicable law, regulation, regulatory bulletin, and/or any
other regulatory requirement, as the same exists or may be hereafter promulgated
or amended, be reimbursed for all reasonable attorney's fees and expenses
incurred by the Executive in pursuing such claim.
9. CONFIDENTIAL INFORMATION.
9.1 CONFIDENTIALITY. The Executive will not, during or after the
Term of Employment, disclose any confidential information relating to the
business activities of the Corporation or any Affiliate thereof which has not
been previously disclosed by any person to any person, firm, corporation, bank
or other entity for any reason or purpose whatsoever. Notwithstanding the
foregoing, the Executive may disclose any knowledge or other information
relating to banking, financial and/or economic principles, concepts or ideas
which are based on experience and which are not derived from the business plans
and activities of the Corporation, and may disclose such confidential
information in connection with legal and/or regulatory proceedings (which shall
include, but not limited to, formal or informal exams, investigations or
inquiries conducted by the Office of Thrift Supervision).
9.2 INJUNCTIVE RELIEF. The Executive acknowledges and agrees that
the Corporation will have no adequate remedy at law, and would be irreparably
harmed, if the Executive breaches or threatens to breach any of the provisions
of this Section 9 of this Agreement. The Executive agrees that the Corporation
shall be entitled to equitable and/or injunctive relief to prevent any breach or
threatened breach of this Section 9, and to specific performance of each of the
terms of such Section in addition to any other legal or equitable remedies that
the Corporation may have. The Executive further agrees that he shall not, in
any equity proceeding relating to the enforcement of the terms of this Section
9, raise the defense that the Corporation has an adequate remedy at law.
9.3 SPECIAL SEVERABILITY. The terms and provisions of this Section 9
are intended to be separate and divisible provisions and if, for any reason, any
one or more of them is held to be invalid or unenforceable, neither the validity
nor the enforceability of any other provision of this Agreement shall thereby be
affected.
21
10. SUCCESSORS.
10.1 THE EXECUTIVE. This Agreement is personal to the Executive
and, without the prior express written consent of the Corporation, shall not
be assignable by the Executive, except that the Executive's rights to receive
any compensation or benefits under this Agreement may be transferred or
disposed of pursuant to testamentary disposition, intestate succession or
pursuant to a qualified domestic relations order. This Agreement shall inure
to the benefit of and be enforceable by the Executive's heirs, beneficiaries
and/or legal representatives.
10.2 THE CORPORATION. This Agreement shall inure to the benefit of
and be binding upon the Corporation and its successors and assigns; PROVIDED,
HOWEVER, that no assignment of this Agreement may be made without the written
consent of the Executive.
11. INDEMNIFICATION.
11.1 The Executive (and his heirs, executors and administrators) shall
be indemnified and held harmless by the Corporation to the fullest extent
permitted by applicable law, regulation, regulatory bulletin, and/or any other
regulatory requirement, as the same exists or may hereafter be promulgated or
amended, against all expense, liability and loss (including, without limitation,
attorneys' fees, judgments, fines, excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by the Executive as a
consequence of the Executive being or having been made a party to, or being or
having been involved, in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that the Executive is or was a trustee, director or officer of the
Corporation or is or was serving at the request of the Corporation as a trustee,
director or officer of another corporation (including, but not limited to, a
subsidiary or an Affiliate of the Corporation), and such indemnification shall
continue after the Executive shall cease to be an officer, director or trustee.
The right to indemnification conferred hereby shall be a contract right and
shall also include, to the extent permitted by applicable regulation, the right
to be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of the final disposition upon receipt by the Corporation
of an undertaking by or on behalf of the Executive to repay such amount or a
portion thereof, if it shall ultimately be determined that the Executive is not
entitled to be
22
indemnified by the Corporation pursuant hereto or as otherwise authorized by law
but such repayment by the Executive shall only be in an amount ultimately
determined to exceed the amount to which the Executive was entitled to be
indemnified.
12. MISCELLANEOUS.
12.1 APPLICABLE LAW. This Agreement shall, to the extent not
superseded by federal law, be governed by and construed in accordance with the
laws of the State of New York, without regard to principles of conflict of laws.
12.2 AMENDMENTS/WAIVER. This Agreement may not be amended, waived, or
modified otherwise than by a written agreement executed by the parties to this
Agreement or their respective successors and legal representatives. No waiver
by any party to this Agreement of any breach of any term, provision or condition
of this Agreement by the other party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same time, or any prior or subsequent
time.
12.3 NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed given when received by hand-delivery to the other
party, by facsimile transmission, by overnight courier, or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive: Xx. Xxxxx X. Xxxxxx
0 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
If to the Corporation: Long Island Bancorp. Inc.
000 Xxx Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Corporate Secretary
23
with a copy to: Xxx X. Xxxxxxxx, Esq.
Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
12.4 WITHHOLDING. The Corporation may withhold from any amounts
payable under this Agreement such taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
12.5 SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
12.6 CAPTIONS. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
12.7 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties to this Agreement concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect thereto.
12.8 REPRESENTATION. The Executive represents and warrants that the
performance of the Executive's duties and obligations under this Agreement will
not violate any agreement between the Executive and any other person, firm,
partnership, corporation, or organization.
12.9 SURVIVORSHIP. The respective rights and obligations of the
parties to this Agreement, including, without limitation, any rights of the
Executive and the Corporation under Section 11 of this Agreement, shall survive
any termination of this Agreement or the Executive's employment hereunder for
any reason to the extent necessary to the intended preservation of such rights
and obligations.
24
12.10 EFFECT OF PAYMENTS UNDER BANK AGREEMENT. Notwithstanding any
provision herein to the contrary, to the extent that payments, entitlements and
benefits are paid to or received by the Executive under the Employment Agreement
dated October 3, 1996, between the Executive and the Bank, the amount of any
such payments, entitlements and benefits actually made by the Bank shall reduce,
to the extent so made, the same payment, entitlement or benefit due to the
Executive under the provisions of this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and the Corporation has caused this Agreement to be executed in its name on
its behalf, and its corporate seal to be hereunto affixed and attested by its
Secretary, all as of the day and year first above written.
LONG ISLAND BANCORP, INC.
By: /s/ Xxxx X. Xxxxxxx, Xx.
----------------------------------
Xxxx X. Xxxxxxx, Xx.
Chief Executive Officer
/s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
