1
EXHIBIT 10.18
ASTORIA FINANCIAL CORPORATION
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT WITH EXECUTIVE OFFICER
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
made and entered into as of January 1, 2000 by and between ASTORIA FINANCIAL
CORPORATION, a business corporation organized and operating under the laws of
the State of Delaware and having an office at Xxx Xxxxxxx Xxxxxxx Xxxxx, Xxxx
Xxxxxxx, Xxx Xxxx 00000-0000 (the "Company"), and XXXXXX X. XXXXXXX, XX., an
individual residing at 00 Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxx Xxxx 00000 (the
"Executive").
WITNESSETH:
WHEREAS, the Executive currently serves the Company in the capacity of
Chairman, President and Chief Executive Officer and as Chairman, President and
Chief Executive Officer of its wholly owned subsidiary, ASTORIA FEDERAL SAVINGS
AND LOAN ASSOCIATION (the "Association"); and
WHEREAS, the Executive currently has an Employment Agreement with the
Company dated January 1, 1996 which the Executive and the Company wish to amend
and modify; and
WHEREAS, the Company desires to assure for itself the continued
availability of the Executive's services and the ability of the Executive to
perform such services with a minimum of personal distraction in the event of a
pending or threatened Change of Control (as hereinafter defined); and
WHEREAS, the Executive is willing to continue to serve the Company on
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and conditions hereinafter set forth, the Company and the Executive
hereby amend and restate in its entirety the Employment Agreement by and between
the Company and the Executive dated as of January 1, 1996 so as to provide as
follows from and after the date hereof:
Section 1. Employment.
The Company agrees to continue to employ the Executive, and the
Executive hereby agrees to such continued employment, during the period and upon
the terms and conditions set forth in this Agreement.
Page 1 of 31
2
Section 2. Employment Period; Remaining Unexpired Employment Period.
(a) The terms and conditions of this Agreement shall be and remain
in effect during the period of employment established under
this Section 2 (the "Employment Period"). The Employment
Period shall be for an initial term of three years beginning
on the date of this Agreement and ending on the day before the
third anniversary date of this Agreement, plus such
extensions, if any, as are provided by the Board of Directors
of the Company (the "Board") pursuant to Section 2(b).
(b) Beginning on the date of this Agreement, the Employment Period
shall automatically be extended for one (1) additional day
each day, unless either the Company or the Executive elects
not to extend the Agreement further by giving written notice
to the other party, in which case the Employment Period shall
end on the day before the third anniversary of the date on
which such written notice is given. For all purposes of this
Agreement, the term "Remaining Unexpired Employment Period" as
of any date shall mean the period beginning on such date and
ending on:
(i) if a notice of non-extension has been given in
accordance with this Section 2(b), the day before the
third anniversary of the date on which such notice is
given; and
(ii) in all other cases, the day before the third
anniversary of the date as of which the Remaining
Unexpired Employment Period is being determined.
Upon termination of the Executive's employment with the
Company for any reason whatsoever, any daily extensions
provided pursuant to this Section 2(b), if not previously
discontinued, shall automatically cease.
(c) Nothing in this Agreement shall be deemed to prohibit the
Company from terminating the Executive's employment at any
time during the Employment Period with or without notice for
any reason; provided, however, that the relative rights and
obligations of the Company and the Executive in the event of
any such termination shall be determined pursuant to this
Agreement.
Section 3. Duties.
The Executive shall serve as Chairman, President and Chief Executive
Officer of the Company, having such power, authority and responsibility and
performing such duties as are prescribed by or pursuant to the By-Laws of the
Company and as are customarily associated with such position. The Executive
shall devote his or her full business time and attention (other than during
weekends, holidays, approved vacation periods, and periods of illness or
approved leaves of absence) to the business and affairs of the Company, its
affiliates and subsidiaries and shall use his
Page 2 of 31
3
or her best efforts to advance the interests of the Company.
Section 4. Cash Compensation.
In consideration for the services to be rendered by the Executive
hereunder, the Company shall pay to him or her a salary at an initial annual
rate of EIGHT HUNDRED TEN THOUSAND DOLLARS ($810,000), payable in approximately
equal installments in accordance with the Company's customary payroll practices
for senior officers. At least annually during the Employment Period, the Board
shall review the Executive's annual rate of salary and may, in its discretion,
approve an increase therein. In no event shall the Executive's annual rate of
salary under this Agreement in effect at a particular time be reduced without
his or her prior written consent and any such reduction in the absence of such
consent shall be a material breach of this Agreement. In addition to salary, the
Executive may receive other cash compensation from the Company for services
hereunder at such times, in such amounts and on such terms and conditions as the
Board may determine from time to time.
Section 5. Employee Benefit Plans and Programs.
During the Employment Period, the Executive shall be treated as an
employee of the Company and shall be entitled to participate in and receive
benefits under any and all qualified or non-qualified retirement, pension,
savings, profit-sharing or stock bonus plans, any and all group life, health
(including hospitalization, medical and major medical), dental, accident and
long term disability insurance plans, and any other employee benefit and
compensation plans (including, but not limited to, any incentive compensation
plans or programs, stock option and appreciation rights plans and restricted
stock plans) as may from time to time be maintained by, or cover employees of,
the Company, in accordance with the terms and conditions of such employee
benefit plans and programs and compensation plans and programs and consistent
with the Company's customary practices.
Section 6. Indemnification and Insurance.
(a) During the Employment Period and for a period of six (6) years
thereafter, the Company shall cause the Executive to be
covered by and named as an insured under any policy or
contract of insurance obtained by it to insure its directors
and officers against personal liability for acts or omissions
in connection with service as an officer or director of the
Company or service in other capacities at the request of the
Company. The coverage provided to the Executive pursuant to
this Section 6 shall be of the same scope and on the same
terms and conditions as the coverage (if any) provided to
other officers or directors of the Company.
(b) To the maximum extent permitted under applicable law, during
the Employment Period and for a period of six (6) years
thereafter, the Company shall indemnify the Executive against,
and hold him or her harmless from, any costs, liabilities,
losses
Page 3 of 31
4
and exposures to the fullest extent and on the most favorable
terms and conditions that similar indemnification is offered
to any director or officer of the Company or any subsidiary or
affiliate thereof.
Section 7. Other Activities.
(a) The Executive may serve as a member of the boards of directors
of such business, community and charitable organizations as he
or she may disclose to and as may be approved by the Board
(which approval shall not be unreasonably withheld); provided,
however, that such service shall not materially interfere with
the performance of his or her duties under this Agreement. The
Executive may also engage in personal business and investment
activities which do not materially interfere with the
performance of his or her duties hereunder; provided, however,
that such activities are not prohibited under any code of
conduct or investment or securities trading policy established
by the Company and generally applicable to all similarly
situated executives.
(b) The Executive may also serve as an officer or director of the
Association on such terms and conditions as the Company and
the Association may mutually agree upon, and such service
shall not be deemed to materially interfere with the
Executive's performance of his or her duties hereunder or
otherwise result in a material breach of this Agreement. If
the Executive is discharged or suspended, or is subject to any
regulatory prohibition or restriction with respect to
participation in the affairs of the Association, he or she
shall (subject to the Company's powers of termination
hereunder) continue to perform services for the Company in
accordance with this Agreement but shall not directly or
indirectly provide services to or participate in the affairs
of the Association in a manner inconsistent with the terms of
such discharge or suspension or any applicable regulatory
order.
Section 8. Working Facilities and Expenses.
The Executive's principal place of employment shall be at the Company's
executive offices at the address first above written, or at such other location
within Queens County or Nassau County, New York at which the Company shall
maintain its principal executive offices, or at such other location as the
Company and the Executive may mutually agree upon. The Company shall provide the
Executive at his or her principal place of employment with a private office,
secretarial services and other support services and facilities suitable to his
or her position with the Company and necessary or appropriate in connection with
the performance of his or her assigned duties under this Agreement. The Company
shall provide to the Executive for his or her exclusive use an automobile owned
or leased by the Company and appropriate to his or her position, to be used in
the performance of his or her duties hereunder, including commuting to and from
his or her personal residence. The Company shall reimburse the Executive for his
or her ordinary and necessary business expenses, including, without limitation,
all expenses associated with his or her business use
Page 4 of 31
5
of the aforementioned automobile, fees for memberships in such clubs and
organizations as the Executive and the Company shall mutually agree are
necessary and appropriate for business purposes, and his or her travel and
entertainment expenses incurred in connection with the performance of his or her
duties under this Agreement, in each case upon presentation to the Company of an
itemized account of such expenses in such form as the Company may reasonably
require.
Section 9. Termination of Employment with Severance Benefits.
(a) The Executive shall be entitled to the severance benefits
described herein in the event that his or her employment with
the Company terminates during the Employment Period under any
of the following circumstances:
(i) the Executive's voluntary resignation from employment
with the Company within six (6) months following:
(A) the failure of the Board to appoint or
re-appoint or elect or re-elect the
Executive to the office of Chairman,
President and Chief Executive Officer (or a
more senior office) of the Company;
(B) if the Executive is or becomes a member of
the Board, the failure of the stockholders
of the Company to elect or re-elect the
Executive to the Board or the failure of the
Board (or the nominating committee thereof)
to nominate the Executive for such election
or re-election;
(C) the expiration of a thirty (30) day period
following the date on which the Executive
gives written notice to the Company of its
material failure, whether by amendment of
the Company's Certificate of Incorporation
or By-laws, action of the Board or the
Company's stockholders or otherwise, to vest
in the Executive the functions, duties, or
responsibilities prescribed in Section 3 of
this Agreement as of the date hereof,
unless, during such thirty (30) day period,
the Company cures such failure in a manner
determined by the Executive, in his or her
discretion, to be satisfactory;
(D) the expiration of a thirty (30) day period
following the date on which the Executive
gives written notice to the Company of its
material breach of any term, condition or
covenant contained in this Agreement
(including, without limitation, any
reduction of the Executive's rate of base
salary in effect from time to time and any
change in the terms and conditions of any
compensation or benefit program in which the
Executive participates which, either
individually or together with other changes,
has a material adverse
Page 5 of 31
6
effect on the aggregate value of his or her
total compensation package), unless, during
such thirty (30) day period, the Company
cures such failure in a manner determined by
the Executive, in his or her discretion, to
be satisfactory; or
(E) the relocation of the Executive's principal
place of employment, without his or her
written consent, to a location outside of
Nassau County and Queens County, New York;
(ii) the termination of the Executive's employment with
the Company for any other reason not described in
Section 10(a).
In such event, the Company shall provide the benefits and pay
to the Executive the amounts described in Section 9(b).
(b) Upon the termination of the Executive's employment with the
Company under circumstances described in Section 9(a) of this
Agreement, the Company shall pay and provide to the Executive
(or, in the event of the Executive's death following the
Executive's termination of employment, to his or her estate):
(i) his or her earned but unpaid compensation (including,
without limitation, all items which constitute wages
under Section 190.1 of the New York Labor Law and the
payment of which is not otherwise provided for under
this Section 9(b)) as of the date of the termination
of his or her employment with the Company, such
payment to be made at the time and in the manner
prescribed by law applicable to the payment of wages
but in any event not later than thirty (30) days
after termination of employment;
(ii) the benefits, if any, to which he or she is entitled
as a former employee under the employee benefit plans
and programs and compensation plans and programs
maintained for the benefit of the Company's officers
and employees;
(iii) continued group life, health (including
hospitalization, medical and major medical), dental,
accident and long term disability insurance benefits,
in addition to that provided pursuant to Section
9(b)(ii), and after taking into account the coverage
provided by any subsequent employer, if and to the
extent necessary to provide for the Executive, for
the Remaining Unexpired Employment Period, coverage
(including any co-payments and deductibles, but
excluding any premium sharing arrangements, it being
the intention of the parties to this Agreement that
the premiums for such insurance benefits shall be the
sole cost and expense of the Company) equivalent to
the coverage to which he or she would have been
entitled under such plans (as in effect on the date
of his or her termination of employment, or, if his
or her
Page 6 of 31
7
termination of employment occurs after a Change of
Control, on the date of such Change of Control,
whichever benefits are greater), if he or she had
continued working for the Company during the
Remaining Unexpired Employment Period at the highest
annual rate of salary or compensation, as applicable,
achieved during that portion of the Employment Period
which is prior to the Executive's termination of
employment with the Company;
(iv) within thirty (30) days following the Executive's
termination of employment with the Company, a lump
sum payment in an amount representing an estimate of
the salary that the Executive would have earned if he
or she had continued working for the Company during
the Remaining Unexpired Employment Period at the
highest annual rate of salary achieved during that
portion of the Employment Period which is prior to
the Executive's termination of employment with the
Company (the "Salary Severance Payment"). The Salary
Severance Payment shall be computed using the
following formula:
SSP = BS x NY
where:
"SSP" is the amount of the Salary Severance Payment,
before the deduction of applicable federal, state and
local withholding taxes;
"BS" is the highest annual rate of salary achieved
during that portion of the Employment Period which is
prior to the Executive's termination of employment
with the Company;
"NY" is the Remaining Unexpired Employment Period
expressed as a number of years (rounded, if such
period is not a whole number, to the next highest
whole number).
The Salary Severance Payment shall be paid in lieu of
all other payments of salary provided for under this
Agreement in respect of the period following any such
termination.
(v) within thirty (30) days following the Executive's
termination of employment with the Company, a lump
sum payment (the "XX Xxxxxxxxx Payment") in an amount
equal to the excess, if any, of:
(A) the present value of the aggregate benefits
to which he or she would be entitled under
any and all qualified and non-qualified
defined benefit pension plans maintained by,
or covering employees of, the
Page 7 of 31
8
Company, if he or she were 100% vested
thereunder and had continued working for the
Company during the Remaining Unexpired
Employment Period, such benefits to be
determined as of the date of termination of
employment by adding to the service actually
recognized under such plans an additional
period equal to the Remaining Unexpired
Employment Period and by adding to the
compensation recognized under such plans for
the most recent year recognized all amounts
payable pursuant to Sections 9(b)(i), (iv),
(vii), (viii) and (ix) of this Agreement;
over
(B) the present value of the benefits to which
he or she is actually entitled under such
defined benefit pension plans as of the date
of his or her termination;
The XX Xxxxxxxxx Payment shall be computed using the
following formula:
DBSP = SEVLS - LS
where:
"DBSP" is the amount of the XX Xxxxxxxxx Payment,
before the deduction of applicable federal, state and
local withholding taxes;
"SEVLS" is the sum of the present value of the
defined benefit pension benefits that have been or
would be accrued by the Executive under all qualified
and non-qualified defined benefit pension plans of
which the Company or any of its affiliates or
subsidiaries are a sponsor and in which the Executive
is or, but for the completion of any service
requirement that would have been completed during the
Remaining Unexpired Employment Period, would be a
participant utilizing the following assumptions:
(I) the executive is 100% vested in the
plans regardless of actual service,
(II) the benefit to be valued shall be a
single life annuity with monthly
payments due on the first day of
each month and with a guaranteed
payout of not less than 120 monthly
payments,
(III) the calculation shall be made
utilizing the same mortality table
and interest rate as would be
utilized by the plan on the date of
termination as if the calculation
were being made pursuant to Section
417(e)(3)(A)(ii) of the Internal
Revenue
Page 8 of 31
9
Code, as amended, (the "Code");
(IV) for purpose of calculating the
Executive's monthly or annual
benefit under the defined benefit
plans, additional service equal to
the Remaining Unexpired Employment
Period (rounded up to the next whole
year if such period is not a whole
number when expressed in years)
shall be added to the Executive's
actual service to calculate the
amount of the benefit; and
(V) for purpose of calculating the
Executive's monthly or annual
benefit under the defined benefit
plans, the following sums shall be
added to the Executive's
compensation recognized under such
plans for the most recent year
recognized:
(1) payments made pursuant to
Section 9(b)(i);
(2) the Salary Severance Payment;
(3) the Bonus Severance Payment;
(4) the Option Surrender Payment;
and
(5) the RRP Surrender Payment.
"LS" is the sum of the present value of the defined
benefit pension benefits that are vested benefits
actually accrued by the Executive under all qualified
and non-qualified defined benefit pension plans
maintained by, or covering employees of, the Company
or any of its affiliates or subsidiaries in which the
Executive is or, but for the completion of any
service requirement, would be a participant utilizing
the following assumptions:
(I) the benefit to be valued shall be a
single life annuity with monthly
payments due on the first day of
each month and with a guaranteed
payout of not less than 120 monthly
payments, and
(II) the calculation shall be made
utilizing the same mortality table
and interest rate as would be
utilized by the plan on the date of
termination as if the calculation
were being made pursuant to Section
417(e)(3)(A)(ii) of the Code;
(vi) within thirty (30) days following the Executive's
termination of employment with the Company, a lump
sum payment (the "Defined Contribution Severance
Payment") equal to the sum of:
(A) an estimate of the additional employer
contributions to which he or
Page 9 of 31
10
she would have been entitled under any and
all qualified and non-qualified defined
contribution pension plans, excluding the
employee stock ownership plans, maintained
by, or covering employees of, the Company or
any of its affiliates or subsidiaries as if
he or she were 100% vested thereunder and
had continued working for the Company during
the Remaining Unexpired Employment Period
(the "401K Severance Payment"); and
(B) an estimate of the value of the additional
assets which would have been allocable to
him or her through debt service or otherwise
under any and all qualified and
non-qualified employee stock ownership
plans, maintained by, or covering employees
of, the Company or any of its affiliates or
subsidiaries as if he or she were 100%
vested thereunder and had continued working
for the Company during the Remaining
Unexpired Employment Period, based on the
fair market value of such assets at
termination of employment (the "ESOP
Severance Payment").
The Defined Contribution Severance Payment shall be
calculated as follows:
DCSP = 401KSP + ESOPSP
where:
"DCSP" is the amount of the Defined Contribution
Severance Payment, before the deduction of applicable
federal, state and local withholding taxes;
"401KSP" is the amount of the 401K Severance Payment,
before the deduction of applicable federal, state and
local withholding taxes; and
"ESOPSP" is the amount of the ESOP Severance Payment,
before the deduction of applicable federal, state and
local withholding taxes.
The 401KSP shall be calculated as follows:
401KSP = (401KC x NY) + UVB
where
"401KC" is the sum of the Company Contributions as
defined in the Association's Incentive Savings Plan
or, if made under another defined contribution
pension plan other than an employee stock ownership
plan, the comparable contribution made for the
benefit of the Executive during the one
Page 10 of 31
11
year period which shall end on the date of his or her
termination of his or her employment with the
Company;
"NY" is the Remaining Unexpired Employment Period
expressed as a number of years (rounded, if such
period is not a whole number, to the next highest
whole number); and
"UVB" is the actual balance credited to the
Executive's account under the applicable plan at the
date of his or her termination of employment that is
not vested and does not become vested as a
consequence of such termination of employment.
The ESOPSP shall be calculated as follows:
ESOPSP = (((ALL x FMV) + C) x NY) + UVB
where:
"ALL" is the sum of the number of shares of the
Company's common stock or, if applicable, phantom
shares of such stock by whatever term it is described
allocated to the Executive's accounts under all
qualified and non-qualified employee stock ownership
plans maintained by the Company or any of its
affiliates or subsidiaries during or for the last
complete plan year in which the Executive
participated in such plans and received such an
allocation whether the allocation occurred as a
result of contributions made by the Company, the
payment by the Company or any of its affiliates or
subsidiaries of any loan payments under a leveraged
employee stock ownership plan, the allocation of
forfeitures under the terms of such plan or as a
result of the use of cash or earnings allocated to
the Executive's account during such plan year to make
loan payments that result in share allocations,
provided however, that excluded shall be any shares
or phantom shares allocated to the Executive's
account under any qualified and non-qualified
employee stock ownership plans maintained by the
Company or any of its affiliates or subsidiaries
solely as a result of the termination of such plans,
provided further, that if the shares allocated are
not shares of the Association's common stock or
phantom shares of such stock than shares of whatever
securities are so allocated shall be utilized, and
provided further, that in the event that there shall
be any shares or phantom shares allocated during the
then current plan year or the last complete plan year
to the Executive's account under any qualified and
non-qualified employee stock ownership plans
maintained by the Association or any of its
affiliates or subsidiaries solely as a result of the
termination of such plans, the ALL shall be reduced
(but not to an amount less than zero (0)) by an
amount calculated
Page 11 of 31
12
by multiplying the number of shares or phantom shares
allocated to the Executive's account solely as a
result of the termination of such plans times the FMV
utilized to calculate the ESOPSP;
"C" is the sum of all cash allocated to the
Executive's accounts under all qualified and
non-qualified employee stock ownership plans
maintained by the Company during or for the last
complete plan year in which the Executive
participated in such plans whether the allocation
occurred as a result of contributions made by the
Company, the payment by the Company or the
Association of any loan payments under a leveraged
employee stock ownership plan or the allocation of
forfeitures under the terms of such plan during such
plan year;
"FMV" is the closing price of the Company's common
stock on The Nasdaq Stock Market or on whatever other
stock exchange or market such stock is publicly
traded on the date the Executive's employment
terminates or, if such day is not a day on which such
securities are traded, on the most recent preceding
trading day on which a trade occurs, provided however
that if the security allocated to the Executive's
account during the last completed plan year is other
than the Company's common stock the closing price of
such other security on the date the Executive's
employment terminates shall be utilized.
"NY" is the Remaining Unexpired Employment Period
expressed as a number of years (rounded, if such
period is not a whole number, to the next highest
whole number); and
"UVB" is the actual balance credited to the
Executive's account under the applicable plan at the
date of his or her termination of employment that is
not vested and does not become vested as a
consequence of such termination of employment.
(vii) within thirty (30) days following the Executive's
termination of employment with the Company, the
Company shall make a lump sum payment to the
Executive in an amount equal to the estimated
potential annual bonuses or incentive compensation
that the Executive could have earned if the Executive
had continued working for the Company during the
Unexpired Employment Period at the highest annual
rate of salary achieved during that portion of the
Employment Period which is prior to the Executive's
termination of employment with the Company (the
"Bonus Severance Payment"). The Bonus Severance
Payment shall be computed using the following
formula:
BSP = (BS x TIO x AP x NY)
Page 12 of 31
13
where:
"BSP" is the amount of the Bonus Severance Payment,
before the deduction of applicable federal, state and
local withholding taxes;
"BS" is the highest annual rate of salary achieved
during that portion of the Employment Period which is
prior to the Executive's termination of employment
with the Company;
"TIO" is the highest target incentive opportunity
(expressed as a percentage of base salary)
established by the Compensation Committee of the
Board for the Executive pursuant to the Astoria
Financial Corporation Executive Officer Annual
Incentive Plan during that portion of the Employment
Period which is prior to the Executive's termination
of employment with the Company;
"AP" is the highest award percentage available to the
Executive with respect to the financial performance
of the Company (expressed as a percentage of the TIO)
established by the Compensation Committee of the
Board for the Executive pursuant to the Astoria
Financial Corporation Executive Officer Annual
Incentive Plan during the period during that portion
of the Employment Period which is prior to the
Executive's termination of employment with the
Company; and
"NY" is the Remaining Unexpired Employment Period
expressed as a number of years (rounded, if such
period is not a whole number, to the next highest
whole number).
(viii) at the election of the Company made within thirty
(30) days following the Executive's termination of
employment with the Company, upon the surrender of
options or appreciation rights issued to the
Executive under any stock option and appreciation
rights plan or program maintained by, or covering
employees of, the Company, a lump sum payment (the
"Option Surrender Payment"). The Option Surrender
Payment shall be calculated as follows:
OSP = (FMV - EP) x N
where:
"OSP" is the amount of the Option Surrender Payment,
before the deduction of applicable federal, state and
local withholding taxes;
Page 13 of 31
14
"FMV" is the closing price of the Company's common
stock on The Nasdaq Stock Market, or on whatever
other stock exchange or market such stock is publicly
traded, on the date the Executive's employment
terminates or, if such day is not a day on which such
securities are traded, on the most recent preceding
trading day on which a trade occurs, provided however
that if the option or stock appreciation right is for
a security other than the Company's common stock, the
fair market value of a share of stock of the same
class as the stock subject to the option or
appreciation right, determined as of the date of
termination of employment shall be utilized;
"EP" is the exercise price per share for such option
or appreciation right, as specified in or under the
relevant plan or program; and
"N" is the number of shares with respect to which
options or appreciation rights are being surrendered.
For purposes of determining the Option Severance
Payment and for purposes of determining the
Executive's right following his or her termination of
employment with the Company to exercise any options
or appreciation rights not surrendered pursuant
hereto, the Executive shall be deemed fully vested in
all options and appreciation rights under any stock
option or appreciation rights plan or program
maintained by, or covering employees of, the Company,
even if he or she is not vested under such plan or
program;
(ix) at the election of the Company made within thirty
(30) days following the Executive's termination of
employment with the Company, upon the surrender of
any shares awarded to the Executive under any
restricted stock plan maintained by, or covering
employees of, the Company, a lump sum payment (the
"RRP Surrender Payment") The RRP Surrender Payment
shall be calculated as follows:
RSP = FMV x N
where:
"RSP" is the amount of the RRP Surrender Payment,
before the deduction of applicable federal, state and
local withholding taxes;
"FMV" is the closing price of the Company's common
stock on The Nasdaq Stock Market, or on whatever
other stock exchange or market such stock is publicly
traded, on the date the Executive's employment
terminates or, if such day is not a day on which such
securities are traded, on the preceding trading day
on which a trade occurs, provided however that if the
restricted stock is
Page 14 of 31
15
a security other than the Company's common stock, the
fair market value of a share of stock of the same
class as the stock granted under such plan,
determined as of the date of termination of
employment shall be utilized; and
"N" is the number of shares which are being
surrendered.
For purposes of determining the RRP Surrender Payment
and for purposes of determining the Executive's right
following his or her termination of employment with
the Company to any stock not surrendered pursuant
hereto, the Executive shall be deemed fully vested in
all shares awarded under any restricted stock plan
maintained by, or covering employees of, the Company,
even if he or she is not vested under such plan.
The Salary Severance Payment, the XX Xxxxxxxxx Payment, the
Defined Contribution Severance Payment, the Bonus Severance
Payment, the Option Surrender Payment and the RRP Surrender
Payment shall be computed at the expense of the Company by an
attorney of the firm of Xxxxxxx Xxxxxxxx & Xxxx, Two World
Trade Center, New York, New York 10048 or, if such firm is
unavailable or unwilling to perform such calculation, by a
firm of independent certified public accountants selected by
the Executive and reasonably satisfactory to the Company (the
"Computation Advisor"). The determination of the Computation
Advisor as to the amount of such payments shall be final and
binding in the absence of manifest error.
The Company and the Executive hereby stipulate that the
damages which may be incurred by the Executive following any
such termination of employment are not capable of accurate
measurement as of the date first above written and that the
payments and benefits contemplated by this Section 9(b)
constitute reasonable damages under the circumstances and
shall be payable without any requirement of proof of actual
damage and without regard to the Executive's efforts, if any,
to mitigate damages. The Company and the Executive further
agree that the Company may condition the payment of the Salary
Severance Payment, the XX Xxxxxxxxx Payment, the Defined
Contribution Severance Payment, the Bonus Severance Payment,
the Option Surrender Payment and the RRP Surrender Payment on
the receipt of the Executive's resignation from any and all
positions which he or she holds as an officer, director or
committee member with respect to the Company, the Association
or any subsidiary or affiliate of either of them.
Section 10. Termination without Additional Company Liability.
(a) In the event that the Executive's employment with the Company
shall terminate during the Employment Period on account of:
Page 15 of 31
16
(i) the discharge of the Executive for Cause, which, for
purposes of this Agreement shall mean:
(A) the Executive intentionally engages in
dishonest conduct in connection with the
Executive's performance of services for the
Company resulting in the Executive's
conviction of a felony;
(B) the Executive is convicted of, or pleads
guilty or nolo contendere to, a felony or
any crime involving moral turpitude;
(C) the Executive willfully fails or refuses to
perform the Executive's duties under this
Agreement and fails to cure such breach
within sixty (60) days following written
notice thereof from the Company;
(D) the Executive breaches the Executive's
fiduciary duties to the Company for personal
profit;
(E) the Executive's willful breach or violation
of any law, rule or regulation (other than
traffic violations or similar offenses), or
final cease and desist order in connection
with the Executive's performance of services
for the Company; or
(F) the Executive's material breach of any
material provision of this Agreement which
is not substantially cured within 60 days
after written notice of such breach is
received by the Executive from the Company.
(ii) the Executive's voluntary resignation from employment
with the Company for reasons other than those
specified in Section 9(a) or 11(b);
(iii) the Executive's death;
(iv) a determination that the Executive is Disabled;
(v) the Executive's termination of employment for any
reason at or after attainment of mandatory retirement
age under the Company's mandatory retirement policy
for executive officers in effect as of the date of
this Agreement;
then the Company, except as otherwise specifically provided
herein, shall have no further obligations under this
Agreement, other than the payment to the Executive (or, in the
event of his or her death, to his or her estate) of the
amounts or benefits provided in Section 9(b)(i) and (ii) of
this Agreement (the "Standard Termination
Page 16 of 31
17
Entitlements").
(b) For purposes of Section 10(a)(i), no act or failure to act, on
the part of the Executive, shall be considered "intentional"
or "willful" unless it is done, or omitted to be done, by the
Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of
the Company. Any act, or failure to act, based upon authority
given pursuant to a resolution duly adopted by the Board or
based upon the written advice of counsel for the Company shall
be conclusively presumed to be done, or omitted to be done, by
the Executive in good faith and in the best interests of the
Company. Except as specifically provided below, the cessation
of employment of the Executive shall not be deemed to be for
Cause within the meaning of Section 10(a)(i) unless and until:
(i) the Board, by the affirmative vote of 75% of its
entire membership, determines that the Executive is
guilty of the conduct described in Section 10(a)(i)
above measured against standards generally prevailing
at the relevant time in the savings and community
banking industry;
(ii) prior to the vote contemplated by Section 10(b)(i),
the Board shall provide the Executive with notice of
the Company's intent to discharge the Executive for
Cause, detailing with particularity the facts and
circumstances which are alleged to constitute Cause
(the "Notice of Intent to Discharge"); and
(iii) after the giving of the Notice of Intent to Discharge
and before the taking of the vote contemplated by
Section 10(b)(i), the Executive, together with the
Executive's legal counsel, if the Executive so
desires, are afforded a reasonable opportunity to
make both written and oral presentations before the
Board for the purpose of refuting the alleged grounds
for Cause for the Executive's discharge; and
(iv) after the vote contemplated by Section 10(b)(i), the
Company has furnished to the Executive a notice of
termination which shall specify the effective date of
the Executive's termination of employment (which
shall in no event be earlier than the date on which
such notice is deemed given) and include a copy of a
resolution or resolutions adopted by the Board,
certified by its corporate secretary, authorizing the
termination of the Executive's employment with Cause
and stating with particularity the facts and
circumstances found to constitute Cause for the
Executive's discharge (the "Final Discharge Notice").
If the Executive, during the 90 (ninety) day period commencing
on the delivery by the Company to the Executive of the Notice
of Intent to Discharge specified in Section 10(b)(ii), resigns
his or her employment with the Company prior to the
Page 17 of 31
18
delivery to the Executive by the Company of the Final
Discharge Notice specified in Section 10(b)(iv), then the
cessation of employment of the Executive shall be deemed to be
for Cause.
Following the giving of a Notice of Intent to Discharge, the
Bank may temporarily suspend the Executive's duties and
authority and, in such event, may also suspend the payment of
salary and other cash compensation, but not the Executive's
participation in retirement, insurance and other employee
benefit plans. If the Executive is not discharged or is
discharged without Cause within forty-five (45) days after the
giving of a Notice of Intent to Discharge, payments of salary
and cash compensation shall resume, and all payments withheld
during the period of suspension shall be promptly restored. If
the Executive is discharged with Cause not later than
forty-five (45) days after the giving of the Notice of Intent
to Discharge, all payments withheld during the period of
suspension shall be deemed forfeited and shall not be included
in the Standard Termination Entitlements. If a Final Discharge
Notice is given later than forty-five (45) days, but sooner
than ninety (90) days, after the giving of the Notice of
Intent to Discharge, all payments made to the Executive during
the period beginning with the giving of the Notice of Intent
to Discharge and ending with the Executive's discharge with
Cause shall be retained by the Executive and shall not be
applied to offset the Standard Termination Entitlements. If
the Bank does not give a Final Discharge Notice to the
Executive within ninety (90) days after giving a Notice of
Intent to Discharge, the Notice of Intent to Discharge shall
be deemed withdrawn and any future action to discharge the
Executive with Cause shall require the giving of a new Notice
of Intent to Discharge. If the Executive resigns pursuant to
Section 10(b), the Executive shall forfeit his or her right to
suspended amounts that have not been restored as of the date
of the Executive's resignation or notice of resignation,
whichever is earlier.
(c) The Company may terminate the Executive's employment on the
basis that the Executive is Disabled during the Employment
Period upon a determination by the Board, by the affirmative
vote of 75% of its entire membership, acting in reliance on
the written advice of a medical professional acceptable to it,
that the Executive is suffering from a physical or mental
impairment which, at the date of the determination, has
prevented the Executive from performing the Executive's
assigned duties on a substantially full-time basis for a
period of at least one hundred and eighty (180) days during
the period of one (1) year ending with the date of the
determination or is likely to result in death or prevent the
Executive from performing the Executive's assigned duties on a
substantially full-time basis for a period of at least one
hundred and eighty (180) days during the period of one (1)
year beginning with the date of the determination. In such
event:
(A) The Company shall pay and provide the Standard
Termination Entitlements to the Executive;
Page 18 of 31
19
(B) In addition to the Standard Termination Entitlements,
the Company shall continue to pay to the Executive
the Executive's base salary, at the annual rate in
effect for the Executive immediately prior to the
termination of the Executive's employment, during a
period ending on the earliest of:
(I) the expiration of one hundred and eighty
(180) days after the date of termination of
the Executive's employment;
(II) the date on which long-term disability
insurance benefits are first payable to the
Executive under any long-term disability
insurance plan covering the Executive; or
(III) the date of the Executive's death.
A termination of employment due to Disability under this
Section shall be effected by a notice of termination given to
the Executive by the Company and shall take effect on the
later of the effective date of termination specified in such
notice or, if no such date is specified, the date on which the
notice of termination is deemed given to the Executive.
Section 11. Termination Upon or Following a Change of Control.
(a) A Change of Control of the Company ("Change of Control") shall
be deemed to have occurred upon the happening of any of the
following events:
(i) approval by the stockholders of the Company of a
transaction that would result in the reorganization,
merger or consolidation of the Company with one or
more other persons, other than a transaction
following which:
(A) at least 51% of the equity ownership
interests of the entity resulting from such
transaction are beneficially owned (within
the meaning of Rule 13d-3 promulgated under
the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) in
substantially the same relative proportions
by persons who, immediately prior to such
transaction, beneficially owned (within the
meaning of Rule 13d-3 promulgated under the
Exchange Act) at least 51% of the
outstanding equity ownership interests in
the Company; and
(B) at least 51% of the securities entitled to
vote generally in the election of directors
of the entity resulting from such
transaction are beneficially owned (within
the meaning of Rule 13d-3 promulgated
Page 19 of 31
20
under the Exchange Act) in substantially the
same relative proportions by persons who,
immediately prior to such transaction,
beneficially owned (within the meaning of
Rule 13d-3 promulgated under the Exchange
Act) at least 51 % of the securities
entitled to vote generally in the election
of directors of the Company;
(ii) the acquisition of all or substantially all of the
assets of the Company or beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of the outstanding
securities of the Company entitled to vote generally
in the election of directors by any person or by any
persons acting in concert, or approval by the
stockholders of the Company of any transaction which
would result in such an acquisition;
(iii) a complete liquidation or dissolution of the Company,
or approval by the stockholders of the Company of a
plan for such liquidation or dissolution;
(iv) the occurrence of any event if, immediately following
such event, at least 50% of the members of the Board
do not belong to any of the following groups:
(A) individuals who were members of the Board on
the date of this Agreement; or
(B) individuals who first became members of the
Board after the date of this Agreement
either:
(I) upon election to serve as a member
of the Board by affirmative vote of
three-quarters of the members of
such Board, or of a nominating
committee thereof, in office at the
time of such first election; or
(II) upon election by the stockholders of
the Company to serve as a member of
the Board, but only if nominated for
election by affirmative vote of
three-quarters of the members of the
Board, or of a nominating committee
thereof, in office at the time of
such first nomination;
provided, however, that such individual's
election or nomination did not result from
an actual or threatened election contest
(within the meaning of Rule 14a-11 of
Regulation 14A promulgated under the
Exchange Act) or other actual or threatened
solicitation of proxies or consents (within
the meaning of Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) other
than by or on behalf of
Page 20 of 31
21
the Board; or
(v) any event which would be described in Section
11(a)(i), (ii), (iii) or (iv) if the term
"Association" were substituted for the term "Company"
therein or the term "Board of Directors of the
Association" were substituted for the term "Board".
In no event, however, shall a Change of Control be deemed to
have occurred as a result of any acquisition of securities or
assets of the Company, the Association, or an affiliate or
subsidiary of either of them, by the Company, the Association,
or a subsidiary of either of them, or by any employee benefit
plan maintained by any of them. For purposes of this Section
11 (a), the term "person" shall have the meaning assigned to
it under Sections 13(d)(3) or 14(d)(2) of the Exchange Act.
(b) In the event of a Change of Control, the Executive shall be
entitled to the payments and benefits contemplated by Section
9(b) in the event of his or her termination of employment with
the Company under any of the circumstances described in
Section 9(a) of this Agreement or under any of the following
circumstances:
(i) resignation, voluntary or otherwise, by the Executive
at any time during the Employment Period within six
(6) months following his or her demotion, loss of
title, office or significant authority or
responsibility or following any reduction in any
element of his or her package of compensation and
benefits;
(ii) resignation, voluntary or otherwise, by the Executive
at any time during the Employment Period within six
(6) months following any relocation of his or her
principal place of employment or any change in
working conditions at such principal place of
employment which the Executive, in his or her
reasonable discretion, determines to be embarrassing,
derogatory or otherwise adverse;
(iii) resignation, voluntary or otherwise, by the Executive
at any time during the Employment Period within six
(6) months following the failure of any successor to
the Company in the Change of Control to include the
Executive in any compensation or benefit program
maintained by it or covering any of its executive
officers, unless the Executive is already covered by
a substantially similar plan of the Company which is
at least as favorable to him or her; or
(iv) resignation, voluntary or otherwise, for any reason
whatsoever during the Employment Period within six
months following the effective date of the Change of
Control.
Page 21 of 31
22
Section 12. Tax Indemnification.
(a) This Section 12 shall apply if the Executive's employment is
terminated upon or following:
(i) a Change of Control (as defined in Section 11 of this
Agreement); or
(ii) a change "in the ownership or effective control" of
the Company or the Association or "in the ownership
of a substantial portion of the assets" of the
Company or the Association within the meaning of
Section 28OG of the Code.
If this Section 12 applies, then, if for any taxable year, the
Executive shall be liable for the payment of an excise tax
under Section 4999 of the Code with respect to any payment in
the nature of compensation made by the Company, the
Association or any direct or indirect subsidiary or affiliate
of the Company or the Association to (or for the benefit of)
the Executive, the Company shall pay to the Executive an
amount intended to indemnify the Executive against the
financial effects of the excise tax imposed on excess
parachute payments under Section 28OG of the Code (the "Tax
Indemnity Payment"). The Tax Indemnity Payment shall be
determined under the following formula:
E x P
TIP = ----------------------------------------
1 - (( FI x ( 1 - SLI )) + SLI + E + M )
where:
"TIP" is the Tax Indemnity Payment, before the deduction of
applicable federal, state and local withholding taxes;
"E" is the percentage rate at which an excise tax is assessed
under Section 4999 of the Code;
"P" is the amount with respect to which such excise tax is
assessed, determined without regard to any amount payable
pursuant to this Section 12;
"FI" is the highest marginal rate of income tax applicable to
the Executive under the Code for the taxable year in question;
"SLI" is the sum of the highest marginal rates of income tax
applicable to the Executive under all applicable state and
local laws for the taxable year in question; and
Page 22 of 31
23
"M" is the highest marginal rate of Medicare tax applicable to
the Executive under the Code for the taxable year in question.
(b) The computation of the Tax Indemnity Payment shall be made at
the expense of the Company by the Computation Advisor and
shall be based on the following assumptions:
(i) that a change in ownership, a change in effective
ownership or control or a change in the ownership of
a substantial portion of the assets of the
Association or the Company has occurred within the
meaning of Section 28OG of the Code (a "28OG Change
of Control");
(ii) that all direct or indirect payments made to or
benefits conferred upon the Executive on account of
the Executive's termination of employment are
"parachute payments" within the meaning of Section
28OG of the Code; and
(iii) that no portion of such payments is reasonable
compensation for services rendered prior to the
Executive's termination of employment.
(c) With respect to any payment that is presumed to be a parachute
payment for purposes of Section 28OG of the Code, the Tax
Indemnity Payment shall be made to the Executive on the
earlier of the date the Company, the Association or any direct
or indirect subsidiary or affiliate of the Company or the
Association is required to withhold such tax or the date the
tax is required to be paid by the Executive, unless, prior to
such date, the Company delivers to the Executive the written
opinion (the "Opinion Letter"), in form and substance
reasonably satisfactory to the Executive, of the Computation
Advisor or, if the Computation Advisor is unable to provide
such opinion, of an attorney or firm of independent certified
public accountants selected by the Company and reasonably
satisfactory to the Executive, to the effect that the
Executive has a reasonable basis on which to conclude that:
(i) no 28OG Change in Control has occurred, or
(ii) all or part of the payment or benefit in question is
not a parachute payment for purposes of Section 28OG
of the Code, or
(iii) all or a part of such payment or benefit constitutes
reasonable compensation for services rendered prior
to the 28OG Change of Control, or
(iv) for some other reason which shall be set forth in
detail in such letter, no excise tax is due under
Section 4999 of the Code with respect to such payment
or benefit.
Page 23 of 31
24
If the Company delivers an Opinion Letter, the Computation
Advisor shall re-compute, and the Company shall make, the Tax
Indemnity Payment, if any, in reliance on the information
contained in the Opinion Letter.
(d) In the event that the Executive's liability for the excise tax
under Section 4999 of the Code for a taxable year is
subsequently determined to be different than the amount with
respect to which the Tax Indemnity Payment is made, the
Executive or the Company, as the case may be, shall pay to the
other party at the time that the amount of such excise tax is
finally determined, an appropriate amount, plus interest, such
that the payment made pursuant to Sections 12(a) and 12(c),
when increased by the amount of the payment made to the
Executive pursuant to this Section 12(d), or when reduced by
the amount of the payment made to the Company pursuant to this
Section 12(d), equals the amount that should have properly
been paid to the Executive under Sections 12(a) and 12(c). The
interest paid to the Company under this Section 12(d) shall be
determined at the rate provided under Section 1274(b)(2)(B) of
the Code. The payment made to the Executive shall include such
amount of interest as is necessary to satisfy any interest
assessment made by the Internal Revenue Service and an
additional amount equal to any monetary penalties assessed by
the Internal Revenue Service on account of an underpayment of
the excise tax. To confirm that the proper amount, if any, was
paid to the Executive under this Section 12, the Executive
shall furnish to the Company a copy of each tax return which
reflects a liability for an excise tax, at least 20 days
before the date on which such return is required to be filed
with the Internal Revenue Service. Nothing in this Agreement
shall give the Company any right to control or otherwise
participate in any action, suit or proceeding to which the
Executive is a party as a result of positions taken on the
Executive's federal income tax return with respect to the
Executive's liability for excise taxes under Section 4999 of
the Code.
(e) The provisions of this Section 12 are designed to reflect the
provisions of applicable federal, state and local tax laws in
effect on the date of this Agreement. If, after the date
hereof, there shall be any change in any such laws, this
Section 12 shall be modified in such manner as the Executive
and the Company may mutually agree upon if and to the extent
necessary to assure that the Executive is fully indemnified
against the economic effects of the tax imposed under Section
4999 of the Code or any similar federal, state or local tax.
Section 13. Covenant Not To Compete.
The Executive hereby covenants and agrees that, in the event of his or
her termination of employment with the Company prior to the expiration of the
Employment Period, for a period of one (1) year following the date of his or her
termination of employment with the Company (or, if less, for the Remaining
Unexpired Employment Period), the Executive shall not, without the written
consent of the Company, become an officer, employee, consultant, director or
trustee of any savings
Page 24 of 31
25
bank, savings and loan association, savings and loan holding company, bank or
bank holding company, or any direct or indirect subsidiary or affiliate of any
such entity, that entails working in any city, town or county in which the
Association or the Company has an office or has filed an application for
regulatory approval to establish an office, determined as of the effective date
of the Executive's termination of employment; provided, however, that this
Section 13 shall not apply if the Executive's employment is terminated for the
reasons set forth in Section 9(a); and provided, further, that if the
Executive's employment shall be terminated on account of Disability as provided
in Section 10(c) of this Agreement, this Section 13 shall not prevent the
Executive from accepting any position or performing any services if:
(a) he or she first offers, by written notice, to accept a similar
position with or perform similar services for the Company on
substantially the same terms and conditions and
(b) the Company declines to accept such offer within ten (10) days
after such notice is given.
Section 14. Confidentiality.
Unless the Executive obtains the prior written consent of the Company,
the Executive shall keep confidential and shall refrain from using for the
benefit of the Executive or any person or entity other than the Company, any
entity which is a subsidiary of the Company or any entity which the Company is a
subsidiary of, any material document or information obtained from the Company,
or from its affiliates or subsidiaries, in the course of the Executive's
employment with any of them concerning their properties, operations or business
(unless such document or information is readily ascertainable from public or
published information or trade sources or has otherwise been made available to
the public through no fault of his or her own) until the same ceases to be
material (or becomes so ascertainable or available); provided, however, that
nothing in this Section 14 shall prevent the Executive, with or without the
Company's consent, from participating in or disclosing documents or information
in connection with any judicial or administrative investigation, inquiry or
proceeding to the extent that such participation or disclosure is required under
applicable law.
Section 15. Solicitation.
The Executive hereby covenants and agrees that, for a period of one (1)
year following the Executive's termination of employment with the Company, he or
she shall not, without the written consent of the Company, either directly or
indirectly:
(a) solicit, offer employment to or take any other action
intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any
officer or employee of the Company, the Association or any
affiliate or subsidiary of ether of them, to terminate his or
her employment and accept employment or become affiliated
with, or provide services for compensation in any capacity
whatsoever to, any savings bank, savings and loan association,
bank, bank holding
Page 25 of 31
26
company, savings and loan holding company, or other
institution engaged in the business of accepting deposits and
making loans, doing business in any city, town or county in
which the Association or the Company has an office or has
filed an application for regulatory approval to establish an
office;
(b) provide any information, advice or recommendation with respect
to any such officer or employee to any savings bank, savings
and loan association, bank, bank holding company, savings and
loan holding company, or other institution engaged in the
business of accepting deposits and making loans, doing
business in any city, town or county in which the Association
or the Company has an office or has filed an application for
regulatory approval to establish an office that is intended,
or that a reasonable person acting in like circumstances would
expect, to have the effect of causing any officer or employee
of the Company, the Association, or any affiliate or
subsidiary of either of them, to terminate his or her
employment and accept employment, become affiliated with or
provide services for compensation in any capacity whatsoever
to any such savings bank, savings and loan association, bank,
bank holding company, savings and loan holding company or
other institution engaged in the business of accepting
deposits and making loans; or
(c) solicit, provide any information, advice or recommendation or
take any other action intended, or that a reasonable person
acting in like circumstances would expect, to have the effect
of causing any customer of the Company, the Association, or
any affiliate or subsidiary of either of them to terminate an
existing business or commercial relationship with the Company,
the Association, or any affiliate or subsidiary of either of
them.
Section 16. No Effect on Employee Benefit Plans or Programs.
The termination of the Executive's employment during the term of this
Agreement or thereafter, whether by the Company or by the Executive, shall have
no effect on the rights and obligations of the parties hereto under the
Company's qualified or non-qualified retirement, pension, savings, thrift,
profit-sharing or stock bonus plans, group life, health (including
hospitalization, medical and major medical), dental, accident and long term
disability insurance plans or such other employee benefit plans or programs, or
compensation plans or programs, as may be maintained by, or cover employees of,
the Company from time to time.
Section 17. Successors and Assigns.
This Agreement will inure to the benefit of and be binding upon the
Executive, his or her legal representatives and testate or intestate
distributees, and the Company and its successors and assigns, including any
successor by merger or consolidation or a statutory receiver or any other person
or firm or corporation to which all or substantially all of the assets and
business of the Company may be sold or otherwise transferred. Failure of the
Company to obtain from any successor
Page 26 of 31
27
its express written assumption of the Company's obligations under this Agreement
at least sixty (60) days in advance of the scheduled effective date of any such
succession shall be deemed a material breach of this Agreement.
Section 18. Notices.
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five (5) days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
If to the Executive:
Xxxxxx X. Xxxxxxx, Xx.
00 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
If to the Company:
Astoria Financial Corporation
Xxx Xxxxxxx Xxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000-0000
Attention: General Counsel
with a copy to:
Xxxxxxx Xxxxxxxx & Wood
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. Xxxxxx Xxxxxx, Esq.
Section 19. Indemnification for Attorneys' Fees.
The Company shall indemnify, hold harmless and defend the Executive
against reasonable costs, including legal fees, incurred by him or her in
connection with or arising out of any action, suit or proceeding in which he or
she may be involved, as a result of his or her efforts, in good faith, to defend
or enforce the terms of this Agreement; provided, however, that in the case of
any action, suit or proceeding instituted prior to a Change of Control, the
Executive shall have substantially prevailed on the merits pursuant to a
judgment, decree or order of a court of competent jurisdiction
Page 27 of 31
28
or of an arbitrator in an arbitration proceeding, or in a settlement. For
purposes of this Agreement, any settlement agreement which provides for payment
of any amounts in settlement of the Company's obligations hereunder shall be
conclusive evidence of the Executive's entitlement to indemnification hereunder,
and any such indemnification payments shall be in addition to amounts payable
pursuant to such settlement agreement, unless such settlement agreement
expressly provides otherwise.
Section 20. Severability.
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
Section 21. Waiver.
Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
Section 22. Counterparts.
This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same Agreement.
Section 23. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the federal laws of the United States and, to the extent that
federal law is inapplicable, in accordance with the laws of the State of New
York applicable to contracts entered into and to be performed entirely within
the State of New York.
Section 24. Headings and Construction.
The headings of sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any section. Any
reference to a section number shall refer to a section of this Agreement, unless
otherwise stated.
Section 25. Entire Agreement: Modifications.
This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or representations
Page 28 of 31
29
relating to the subject matter hereof. No modifications of this Agreement shall
be valid unless made in writing and signed by the parties hereto.
Section 26. Guarantee.
The Company hereby agrees to guarantee the payment by the Association
of any benefits and compensation to which the Executive is or may be entitled to
under the terms and conditions of the Amended and Restated Employment Agreement
dated as of the lst day of January, 2000 between the Association and the
Executive.
Section 27. Non-duplication.
In the event that the Executive shall perform services for the
Association or any other affiliate or subsidiary of the Company, any
compensation or benefits provided to the Executive by such other employer shall
be applied to offset the obligations of the Company hereunder, it being intended
that this Agreement set forth the aggregate compensation and benefits payable to
the Executive for all services to the Company and all of its affiliates and
subsidiaries.
Section 28. Survival.
The provisions of any sections of this Agreement which by its terms
contemplates performance after the expiration or termination of this Agreement
(including, but not limited to, Sections 6, 9, 10, 11, 12, 13, 14, 15, 16, 17,
18, 19, 21, 26, 27, 29, 30 and 31) shall survive the expiration of the
Employment Period or termination of this Agreement.
Section 29. Equitable Remedies.
The Company and the Executive hereby stipulate that money damages are
an inadequate remedy for violations of Sections 6(a), 13, 14 or 15 of this
Agreement and agree that equitable remedies, including, without limitations, the
remedies of specific performance and injunctive relief, shall be available with
respect to the enforcement of such provisions.
Section 30. Required Regulatory Provisions.
Notwithstanding anything herein contained to the contrary, any payments
to the 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. Section1828(k), and any
regulations promulgated thereunder.
Section 31. No Offset or Recoupment; No Attachment.
The Company's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations under this Agreement shall
not be affected by any set-off,
Page 29 of 31
30
counterclaim, recoupment, defense or other claim, right or action which the
Company or any of its affiliates or subsidiaries may have against the Executive.
In no event shall the Executive be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement and such amounts shall not be
reduced whether or not the Executive obtains other employment. 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.
Section 32. LISB Transaction.
The Executive hereby waives any claim the Executive may have pursuant
to his or her Employment Agreements each dated January 1, 1996 with the Company
and the Association, respectively, that the acquisition by and the merger of
Long Island Bancorp, Inc. and The Long Island Savings Bank, FSB with and into
the Company and the Association, respectively, constituted a "change of control"
of the Company or the Association as defined in such Employment Contracts.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and the Executive has hereunto set his or her hand, all as of the day
and year first above written.
ATTEST:
/S/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
[Seal]
ASTORIA FINANCIAL CORPORATION
By: /S/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice Chairman and Chief Administrative Officer
/S/ Xxxxxx X. Xxxxxxx, Xx.
XXXXXX X. XXXXXXX, XX.
Page 30 of 31
31
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
On this 20 day of March, 2000, before me, the undersigned, personally
appeared Xxxxxx X. Xxxxxxx, Xx., personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
/S/ Xxxx Xxxxx
Notary Public
Xxxx Xxxxx
Notary Public, State of New York
No. 4980431
Qualified in Suffolk County
Commission Expires April 22, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NASSAU )
On this 20 day of March, 2000, before me, the undersigned, personally
appeared Xxxxxx X. Xxxxxx, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
/S/ Xxxx Xxxxx
Notary Public
Xxxx Xxxxx
Notary Public, State of New York
No. 4980431
Qualified in Suffolk County
Commission Expires April 22, 2001
Page 31 of 31
