Exhibit 10.1
QUEENS COUNTY BANCORP, INC.
EMPLOYMENT AGREEMENT
AS AMENDED AND RESTATED
This AGREEMENT as amended and restated effective February 7, 1997 was
first made effective as of November 23, 1993, by and between Queens County
Bancorp, Inc. (the "Holding Company"), a corporation organized under the laws of
Delaware, with its principal administrative office at 00-00 Xxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx, and Xxxxxx X. Xxxxxxxx (the "Executive"). Any reference to
"Bank" herein shall mean Queens County Savings Bank or any successor thereto.
WHEREAS, the Holding Company wishes to assure itself of the services of
Executive for the period provided in this Agreement; and
WHEREAS, the Executive is willing to serve in the employ of the Holding
Company on a full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
l. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, Executive agrees to serve
as Chief Executive Officer and President of the Holding Company. The Executive
shall render administrative and management services to the Holding Company such
as are customarily performed by persons in a similar executive capacity. During
said period, Executive also agrees to serve, if elected, as an officer and
director of any subsidiary of the Holding Company. Failure to reelect Executive
as Chief Executive Officer and President of the Holding Company or failure to
reelect Executive as President and Chief Executive Officer of the Bank without
the consent of the Executive shall constitute a breach of this Agreement.
2. TERMS.
(a) The period of Executive's employment under this Agreement shall be
deemed to have commenced as of the date first above written (the "Effective
Date") and shall continue for a period of thirty-six (36) full calendar months
thereafter. Commencing with the Effective Date, the term of this Agreement shall
be extended for one day each day until such time as the Board of the Holding
Company or the Executive elects not to extend the term of the Agreement further
by giving written notice to the other party in accordance with Section 9 of this
Agreement, in which case the term of this Agreement shall be fixed and shall end
on the third anniversary of the date of such written notice; provided, that in
any event, the term of this Agreement shall end on the last day of the month in
which the Executive attains the age of 65. The Board will review the Agreement
and the Executive's performance annually for purposes of determining whether to
give notice not to extend the Agreement, and the results thereof shall be
included in the minutes of the Board's meeting.
(b) During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the Holding Company and participation in community
and civic organizations; provided, however, that, with the approval of the
Board, as evidenced by a resolution of such Board, from time to time, Executive
may serve, or continue to serve, on the boards of directors of, and hold any
other offices or positions in, companies or organizations, which, in such
Board's judgment, will not present any conflict of interest with the Holding
Company, or materially affect the performance of Executive's duties pursuant to
this Agreement.
(c) Notwithstanding anything herein contained to the contrary: (i)
Executive's employment with the Holding Company may be terminated by the Holding
Company or Executive during the term of this Agreement,
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subject to the terms and conditions of this Agreement; and (ii) nothing in this
Agreement shall mandate or prohibit a continuation of Executive's employment
following the expiration of the term of this Agreement upon such terms and
conditions as the Board and Executive may mutually agree.
(d) Upon the termination of Executive's employment with the Holding
Company, the daily extensions provided pursuant to section 2(a), shall cease (if
such extensions have not previously ceased), and, if such termination is under
circumstances described in section 4(a), the term "remaining term of the
Agreement" in section 4(b) shall mean the period of time commencing from the
date of such termination and ending on the last day of the employment period
computed with reference to all extensions prior to such termination.
(e) In the event that Executive's duties and responsibilities with respect
to the Bank are temporarily or permanently terminated pursuant to Section 8 of
the Employment Agreement dated November 23, 1993 between Executive and the Bank
("Bank Agreement") and the course of conduct upon which such termination is
based would not constitute grounds for Termination for Cause under Section 8 of
this Agreement then Executive shall, to the extent practicable, assume such
duties and responsibilities formerly performed at the Bank as part of his duties
and responsibilities as Chief Executive Officer and President of the Holding
Company. Nothing in this provision shall be interpreted as restricting the
Holding Company's right to remove Executive for Cause in accordance with Section
8 of this Agreement.
3. COMPENSATION AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Section 1. The Holding
Company shall pay Executive as compensation a salary of not less than $500,000
per year ("Base Salary"). Base Salary shall include any amounts of compensation
deferred by Executive under a qualified plan maintained by the Bank. Such Base
Salary shall be payable bi-weekly. During the period of this Agreement,
Executive's Base Salary shall be reviewed at least annually; the first such
review will be made no later than one year from the date of this Agreement. Such
review shall be conducted by the Salary and Personnel Committee designated by
the Board, and the Board may increase Executive's Base Salary. An increase shall
become the "Base Salary" for purposes of this Agreement. In no event shall
Executive's annual rate of salary under this Agreement in effect at a particular
time be reduced without his prior written consent. In addition to the Base
Salary provided in this Section 3(a), the Holding Company shall also provide
Executive at no cost to Executive with all such other benefits as are provided
uniformly to permanent full-time employees of the Holding Company and the Bank.
(b) The Holding Company will provide Executive with employee benefit
plans, arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from immediately prior
to the beginning of the term of this Agreement, and the Holding Company will
not, without Executive's prior written consent, make any changes in such plans,
arrangements or perquisites which would adversely affect Executive's rights or
benefits thereunder, provided, however, that the Holding Company may make such
changes to such plans, agreements or perquisites generally provided on a
nondiscriminatory basis to all employees, without the Executive's consent.
Without limiting the generality of the foregoing provisions of this Subsection
(b), Executive will be entitled to participate in or receive benefits under any
employee benefit plans including, but not limited to, retirement plans,
supplemental retirement plans, pension plans, profit-sharing plans,
health-and-accident plans, medical coverage or any other employee benefit plan
or arrangement made available by the Holding Company in the future to its senior
executives and key management employees, subject to and on a basis consistent
with the terms, conditions and overall administration of such plans and
arrangements. Executive will be entitled to incentive compensation and bonuses
as provided in any plan of the Holding Company in which Executive is eligible to
participate. Nothing paid to the Executive under any such plan or arrangement
will be deemed to be in lieu of other compensation to which the Executive is
entitled under this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of this
Section 3 and other compensation provided for by paragraph (b) of this Section
3, the Holding Company shall pay or reimburse Executive for all reasonable
travel and other reasonable expenses incurred by Executive performing his
obligations under this Agreement and may provide such additional compensation in
such form and such amounts as the Board may from time to time determine.
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(d) In the event that Executive assumes additional duties and
responsibilities pursuant to Section 2(c) of this Agreement by reason of one of
the circumstances contained in Section 2(c) of this Agreement, and the Executive
receives or will receive less than the full amount of compensation and benefits
formerly entitled to him under the Bank Agreement, the Holding Company shall
assume the obligation to provide Executive with his compensation and benefits in
accordance with the Bank Agreement less any compensation and benefits received
from the Bank, subject to the terms and conditions of this Agreement including
the termination for Cause provisions in Section 8.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
The provisions of this Section shall in all respects be subject to the
terms and conditions stated in Section 8.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the Bank or the Holding Company of Executive's full-time
employment hereunder for any reason other than a Change in Control, as defined
in Section 5(a) hereof, for Disability, as defined in Section 6 hereof; upon
Retirement, as defined in Section 7 hereof, or for Cause, as defined in Section
8 hereof, (ii) Executive's resignation from the Holding Company's employ, upon
any (A) failure to elect or reelect or to appoint or reappoint Executive as
Chief Executive Officer and President, (B) unless consented to by the Executive,
a material change in Executive's function, duties, or responsibilities, which
change would cause Executive's position to become one of lesser responsibility,
importance, or scope from the position and attributes thereof described in
Section 1, above, (and any such material adverse change shall be deemed a
continuing breach of this Agreement), (C) a relocation of Executive's principal
place of employment by more than 30 miles from its location at the effective
date of this Agreement, or a material reduction in the benefits and perquisites
to the Executive from those being provided as of the effective date of this
Agreement, (D) liquidation or dissolution of the Bank or Holding Company, or (E)
material breach of this Agreement by the Holding Company. Upon the occurrence of
any event described in clauses (A), (B), (C), (D) or (E), above, Executive shall
have the right to elect to terminate his employment under this Agreement by
resignation upon not less than thirty (30) days prior written notice given
within a reasonable period of time not to exceed, except in case of a continuing
breach, four calendar months after the event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, the Holding Company
shall be obligated to pay Executive, or, in the event of his subsequent death,
his beneficiary or beneficiaries, or his estate, as the case may be, as
severance pay or liquidated damages, or both, a sum equal to the payments due
for the remaining term of the Agreement including Base Salary, bonuses and any
other cash or deferred compensation paid or to be paid to the executive for such
years, and the amount of any benefits received or to be received by the
Executive or contributions made or to be made on behalf of the Executive
pursuant to any employee benefit plans maintained by the Bank during such years.
At the election of the Executive, which election is to be made within thirty
(30) days of the Date of Termination, such payments shall be made in a lump sum
or paid monthly during the remaining term of the agreement following the
Executive's termination. In the event that no election is made, payment to the
Executive will be made on a monthly basis during the remaining term of the
Agreement. Such payments shall not be reduced in the event the Executive obtains
other employment following termination of employment.
(c) Upon the occurrence of an Event of Termination, the Holding Company
will cause to be continued life, medical, dental and disability coverage
substantially identical to the coverage maintained by the Bank or the Holding
Company for Executive prior to his termination. Such coverage shall cease upon
the expiration of the remaining term of this Agreement.
(d) In the event that the Executive is receiving monthly payments pursuant
to Section 4(b) hereof, on an annual basis, thereafter, between the dates of
January 1 and January 31 of each year, Executive shall elect whether, the
balance of the amount payable under the Agreement at that time shall be paid in
a lump sum or on a pro rata basis. Such election shall be irrevocable for the
year for which such election is made.
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5. CHANGE IN CONTROL.
(a) No benefit shall be payable under this Section 5 unless there shall
have been a Change in Control of the Bank or the Holding Company as set forth
below. For purposes of this Agreement, a "Change in Control" of the Bank or
Holding Company shall mean an event of a nature that: (i) would be required to
be reported in response to Item 1(a) of the current report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 0000 (xxx "Xxxxxxxx Xxx"); or (ii) results in a Change in
Control of the Bank or the Holding Company within the meaning of the Change in
Bank Control Act and the Rules and Regulations promulgated by the Federal
Deposit Insurance Corporation ("FDIC") at 12 C.F.R. ss. 303.4(a) with respect to
the Bank and the Board of Governors of the Federal Reserve System ("FRB") at 12
C.F.R. ss. 225.41(b) with respect to the Holding Company, as in effect on the
date hereof; or (iii) results in a transaction requiring prior FRB approval
under the Bank Holding Company Act of 1956 and the regulations promulgated
thereunder by the FRB at 12 C.F.R. ss. 225.11, as in effect on the date hereof
except for the Holding Company's acquisition of the Bank; or (iv) without
limitation such a Change in Control shall be deemed to have occurred at such
time as (A) any "person" (as the term is used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the "beneficial owner" (as defined in Rule l3d-3
under the Exchange Act), directly or indirectly, of securities of the Bank or
the Holding Company representing 20% or more of the Bank's or the Holding
Company's outstanding securities except for any securities of the Bank purchased
by the Holding Company in connection with the conversion of the Bank to the
stock form and any securities purchased by the Bank's employee stock ownership
plan and trust; or (B) individuals who constitute the Board on the date hereof
(the "Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the date
hereof whose election was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose nomination for election by
the Holding Company's stockholders was approved by the same Nominating Committee
serving under an Incumbent Board, shall be, for purposes of this clause (B),
considered as though he were a member of the Incumbent Board; or (C) a plan of
reorganization, merger, consolidation, sale of all or substantially all the
assets of the Bank or the Holding Company or similar transaction occurs in which
the Bank or Holding Company is not the resulting entity; or (D) a proxy
statement shall be distributed soliciting proxies from stockholders of the
Holding Company, by someone other than the current management of the Holding
Company, seeking stockholder approval of a plan of reorganization, merger or
consolidation of the Holding Company or Bank or a similar transaction with one
or more corporations as a result of which the outstanding shares of the class of
securities then subject to such plan or transaction are exchanged for or
converted into cash or property or securities not issued by the Bank or the
Holding Company; or (E) a tender offer is made for 20% or more of the voting
securities of the Bank or Holding Company then outstanding.
(b) If any of the events described in Section 5(a) hereof constituting a
Change in Control have occurred or the Board has determined that a Change in
Control has occurred, notwithstanding the provisions of Section 2(a), the term
of this Agreement shall be deemed to have commenced as of the date of the Change
in Control and shall continue for a period of thirty-six (36) full calendar
months thereafter. Commencing on the date of the Change in Control, the term of
this Agreement shall be extended for one day each day.
(c) If any of the events described in Section 5(a) hereof constituting a
Change in Control have occurred or the Board has determined that a Change in
Control has occurred, Executive shall be entitled to the benefits provided in
paragraphs (d), (e), (f) and (g) of this Section 5 upon his subsequent
termination of employment at any time during the term of this Agreement
(regardless of whether such termination results from his dismissal or his
resignation at any time during the term of this Agreement following any
demotion, loss of title, office or significant authority or responsibility,
reduction in the annual compensation or benefits or relocation of his principal
place of employment by more than 30 miles from its location immediately prior to
the change in control), unless such termination is because of his death, or
termination for Cause.
(d) Upon the occurrence of a Change in Control followed by the Executive's
termination of employment, the Holding Company shall pay Executive, or in the
event of his subsequent death, his beneficiary or beneficiaries, or his estate,
as the case may be, as severance pay or liquidated damages, or both, a sum equal
to the greater of the payments due for the remaining term of the Agreement or
three (3) times the average of the three (3) preceding years' Base Salary,
including bonuses and any other cash or deferred compensation paid or to be paid
to the Executive during such years, and the amount of any contributions made or
to be made to any employee benefit
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plans, on behalf of the Executive, maintained by the Bank or the Holding Company
during such years except to the extent such benefits are otherwise payable to
the Executive under the terms of such plans upon a Change in Control. For
purposes of determining the benefit due under this Section 5(d), when
calculating the payments due for the remaining term of this Agreement, it shall
be assumed that for each year of the remaining term of the Agreement, the
Executive will receive (i) an annual increase in Base Salary equal to the
average increase received in the preceding three years, (ii) the maximum bonus
payable, and (iii) the maximum contribution by or on behalf of the Executive
with respect to any employee benefit plans maintained by the Bank. At the
election of the Executive, which election is to be made within thirty (30) days
of the Date of Termination following a Change in Control, such payment may be
made in a lump sum or paid in equal monthly installments during the thirty-six
(36) months following the Executive's termination. In the event that no election
is made, payment to the Executive will be made on a monthly basis during the
remaining term of the Agreement.
(e) Upon the occurrence of a Change in Control followed by the Executive's
termination of employment, the Holding Company will cause to be continued life,
medical, dental and disability coverage substantially identical to the coverage
maintained by the Bank for Executive prior to his severance. Such coverage and
payments shall cease upon the expiration of thirty-six (36) months.
(f) In the event that the Executive is receiving monthly payments pursuant
to Section 5(d) hereof, on an annual basis, thereafter, between the dates of
January 1 and January 31 of each year, Executive shall elect whether the balance
of the amount payable under the Agreement at that time shall be paid in a lump
sum or on a pro rata basis pursuant to such section. Such election shall be
irrevocable for the year for which such election is made.
(g) In each calendar year that Executive is entitled to receive payments
or benefits under the provisions of the Employment Agreement with the Bank and
this Employment Agreement, the Holding Company shall determine if an excess
parachute payment (as defined in Section 4999 of the Internal Revenue Code of
1986, as amended, and any successor provision thereto, (the "Code")) exists.
Such determination shall be made after taking any reductions permitted pursuant
to Section 280G of the Code and the regulations thereunder. Any amount
determined to be an excess parachute payment after taking into account such
reductions shall be hereafter referred to as the "Initial Excess Parachute
Payment". As soon as practicable after a Change in Control, the Initial Excess
Parachute Payment shall be determined. Upon the Date of Termination following a
Change in Control, the Holding Company shall pay Executive, subject to
applicable withholding requirements under applicable city, state or federal law
an amount equal to:
(1) twenty (20) percent of the Initial Excess Parachute Payment (or such
other amount equal to the tax imposed under Section 4999 of the
Code); and
(2) such additional amount (tax allowance) as may be necessary to
compensate Executive for the payment by Executive of city, state and
federal income and excise taxes on the payment provided under clause
(1) and on any payments under this Clause (2). In computing such tax
allowance, the payment to be made under Clause (1) shall be
multiplied by the "gross up percentage" ("GUP"). The GUP shall be
determined as follows:
GUP = Tax Rate
------------
1 - Tax Rate
The "Tax Rate" for purposes of computing the GUP shall be the sum of
the highest marginal federal, state and city income and
employment-related tax rates, including any applicable excise tax
rates, applicable to the Executive in the year in which the payment
under Clause (1) is made.
(3) Notwithstanding the foregoing, if it shall subsequently be
determined in a final judicial determination or a final
administrative settlement to which Executive is a party that the
excess parachute payment as defined in Section 4999 of the Code,
reduced as described above, is more than the Initial Excess
Parachute Payment (such different amount being hereafter referred to
as the "Determinative Excess Parachute Payment") then the Holding
Company's independent accountants shall determine the amount (the
"Adjustment Amount") the Holding Company must pay to the Executive
in order to put the Executive in the same position as the Executive
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would have been if the Initial Excess Parachute Payment had been
equal to the Determinative Excess Parachute Payment. In determining
the Adjustment Amount, independent accountants of the Holding
Company shall take into account any and all taxes (including any
penalties and interest) paid by or for Executive or refunded to
Executive or for Executive's benefit. As soon as practicable after
the Adjustment Amount has been so determined, the Holding Company
shall pay the Adjustment Amount to Executive. In no event however,
shall Executive make any payment under this paragraph to the Holding
Company.
6. TERMINATION FOR DISABILITY
(a) If, as a result of Executive's incapacity due to physical or mental
illness, such incapacity being determined by a doctor selected by the Holding
Company, he shall have been absent from his duties with the Holding Company on a
full-time basis for six (6) consecutive months, and within thirty (30) days
after written notice of potential termination is given he shall not have
returned to the full-time performance of his duties, the Holding Company may
terminate Executive's employment for "Disability."
(b) The Holding Company will pay Executive, as disability pay, a bi-weekly
payment equal to seventy-five percent (75%) of Executive's bi-weekly rate of
Base Salary on the effective date of such termination. These disability payments
shall commence on the effective date of Executive's termination and will end on
the earlier of (i) the date Executive returns to the full-time employment of the
Holding Company in the same capacity as he was employed prior to his termination
for Disability and pursuant to an employment agreement between Executive and the
Holding Company; (ii) Executive's full-time employment by another employer;
(iii) Executive attaining the normal age of retirement or receiving benefits
under the Bank's Defined Benefit Plan; (iv) Executive's death; or (v) the
expiration of the term of this Agreement. Notwithstanding any other provisions
to the contrary, the Holding Company may apply any proceeds from disability
income insurance for Executive which was paid for by the Bank or Holding Company
as partial satisfaction of its obligations under this Section.
(c) The Holding Company will cause to be continued life, medical, dental
and disability coverage substantially identical to the coverage maintained by
the Holding Company for Executive prior to his termination for Disability. This
coverage and payments shall cease upon the earlier of (i) the date Executive
returns to the full-time employment of the Holding Company, in the same capacity
as he was employed prior to his termination for Disability and pursuant to an
employment agreement between Executive and the Holding Company; (ii) Executive's
fulltime employment by another employee; (iii) Executive's attaining the normal
age of retirement or receiving benefits under the Bank's Defined Benefit Plan;
(iv) the Executive's death; or (v) the expiration of the term of this Agreement.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period which Executive is
incapable of performing his duties hereunder by reason of temporary disability.
7. TERMINATION UPON RETIREMENT.
Termination by the Holding Company of the Executive based on "Retirement"
shall mean termination in accordance with the Holding Company's or Bank's
retirement policy or in accordance with any retirement arrangement established
with Executive's consent with respect to him. Upon termination of Executive upon
Retirement, Executive shall be entitled to all benefits under any retirement
plan of the Holding Company or the Bank and other plans to which Executive is a
party, and shall be entitled to the benefits, if any, as a former employee under
the Holding Company's or the Bank's employee benefit plans and programs and
compensation plans and programs.
8. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination because of
personal dishonesty which results in loss to the Holding Company or one of its
affiliates, intentional failure to perform stated duties, or willful violation
of any law, rule, regulation (other than traffic violations or similar offenses)
or final cease and desist order which results in substantial loss to the Holding
Company or one of its affiliates. For purposes of this Section, no act, or
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the failure to act, on Executive's part shall be "willful" unless done, or
omitted to be done, not in good faith and without reasonable belief that the
action or omission was in the best interest of the Holding Company or its
affiliates. Notwithstanding the foregoing, Executive shall not be deemed to have
been terminated for Cause unless and until there shall have been delivered to
him a Notice of Termination which shall include a copy of a resolution duly
adopted by the affirmative vote of not less than three-fourths of the members of
the Board at a meeting of the Board called and held for that purpose (after
reasonable notice to Executive and an opportunity for him, together with
counsel, to be heard before the Board), finding that in the good faith opinion
of the Board, Executive was guilty of conduct justifying termination for Cause
and specifying the particulars thereof in detail. The Executive shall not have
the right to receive compensation or other benefits for any period after
termination for Cause. Any stock options and related limited rights granted to
Executive under any stock option plan, or any unvested awards granted to
Executive under any RRP of the Bank, the Holding Company or any subsidiary or
affiliate thereof, shall become null and void effective upon Executive's receipt
of Notice of Termination for Cause pursuant to Section 9 hereof, and shall not
be exercisable by or delivered to Executive at any time subsequent to such
Termination for Cause.
9. NOTICE.
(a) Any purported termination by the Holding Company or by Executive shall
be communicated by Notice of Termination to the other party hereto. For purposes
of this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(b) Subject to section 9(c), "Date of Termination" shall mean (A) if
Executive's employment is terminated for disability, thirty (30) days after a
Notice of Termination is given (provided that he shall not have returned to the
performance of his duties on a full-time basis during such thirty (30) day
period, and (B) if his employment is terminated for any other reason, the date
specified in the Notice of Termination (which, in the case of a Termination for
Cause, shall not be less than thirty (30) days from the date such Notice of
Termination is given).
(c) If, within thirty (30) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, except upon the occurrence of a
Change in Control and voluntary termination by the Executive in which case the
Date of Termination shall be the date specified in the Notice, the Date of
Termination shall be the date on which the dispute is finally determined, either
by mutual written agreement of the parties, by a binding arbitration award, or
by a final judgment, order or decree of a court of competent jurisdiction (the
time for appeal therefrom having expired and no appeal having been perfected)
and provided further that the Date of Termination shall be extended by a notice
of dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Holding Company will
continue to pay Executive his full compensation in effect when the notice giving
rise to the dispute was given (including, but not limited to, Base Salary) and
continue him as a participant in all compensation, benefit and insurance plans
in which he was participating when the notice of dispute was given, until the
dispute is finally resolved in accordance with this Agreement. Amounts paid
under this Section are in addition to all other amounts due under this Agreement
and shall not be offset against or reduce any other amounts due under this
Agreement.
(d) The Holding Company may terminate the Executive's employment at any
time, but any termination by the Holding Company, other than Termination for
Cause, shall not prejudice Executive's right to compensation or other benefits
under this Agreement or under any other benefit or compensation plans or
programs maintained by the Holding Company from time to time. Executive shall
not have the right to receive compensation or other benefits for any period
after Termination for Cause as defined in Section 8 herein above.
10. POST-TERMINATION OBLIGATIONS.
(a) All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with paragraph (b) of this Section 10 during
the term of this Agreement and for one (1) full year after the expiration or
termination hereof.
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(b) Executive shall, upon reasonable notice, furnish such information and
assistance to the Holding Company as may reasonably be required by the Holding
Company in connection with any litigation in which it or any of its subsidiaries
or affiliates is, or may become, a party. The Holding Company will reimburse the
Executive for reasonable costs incurred by the Executive in connection with
furnishing such information and assistance to the Holding Company.
11. NON-DISCLOSURE OF HOLDING COMPANY BUSINESS
Executive recognizes and acknowledges that the knowledge of the business
activities and plans for business activities of the Holding Company and
affiliates thereof, as it may exist from time to time, is a valuable, special
and unique asset of the business of the Bank. Executive will not, during or
after the term of his employment, disclose any knowledge of the past, present,
planned or considered business activities of the Bank or affiliates thereof to
any person, firm, corporation, or other entity for any reason or purpose
whatsoever. Notwithstanding the foregoing, Executive may disclose any knowledge
of banking, financial and/or economic principles, concepts or ideas which are
not solely and exclusively derived from the business plans and activities of the
Holding Company. In the event of a breach or threatened breach by the Executive
of the provisions of this Section, the Holding Company will be entitled to an
injunction restraining Executive from disclosing, in whole or in part, the
knowledge of the past, present, planned or considered business activities of the
Holding Company or affiliates thereof, or from rendering any services to any
person, firm, corporation, other entity to whom such knowledge, in whole or in
part, has been disclosed or is threatened to be disclosed. Nothing herein will
be construed as prohibiting the Holding Company from pursuing any other remedies
available to the Holding Company for such breach or threatened breach, including
the recovery of damages from Executive.
12. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Holding Company subject to Section 13
hereof. The Holding Company may use insurance proceeds especially obtained
therefore as partial payment in the event of disability.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior employment agreement between the Holding Company
or any predecessor of the Holding Company and Executive, except that this
Agreement shall not affect or operate to reduce any benefit or compensation
inuring to the Executive of a kind elsewhere provided. No provision of this
Agreement shall be interpreted to mean that Executive is subject to receiving
fewer benefits than those available to him without reference to this Agreement.
14. EFFECT OF ACTION UNDER BANK AGREEMENT.
Notwithstanding any provision herein to the contrary, to the extent that
payments and benefits, as provided by this Agreement, are paid to or received by
Executive under the Employment Agreement of even date herewith between Executive
and the Bank, such compensation payments and benefits paid by the Bank will be
subtracted from any amount due simultaneously to Executive under similar
provisions of this Agreement. Payments pursuant to this Agreement and the
Holding Company Agreement shall be allocated in proportion to the level of
activity and the time expended on such activities by the Executive as determined
by the Holding Company and the Bank on a quarterly basis.
15. NO ATTACHMENT.
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.
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16. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
17. SUCCESSOR AND ASSIGNS.
This Agreement will inure to the benefit of and be binding upon Executive,
his legal representatives and testate or intestate distributes, and the Holding
Company, its successors and assigns, including any successor by purchase,
merger, consolidation or otherwise 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 Holding Company may be sold or otherwise transferred. Any such
successor of the Holding company shall be deemed to have assumed this Agreement
and to have become obligated hereunder to the same extent as the Holding
Company, and Executive's obligations hereunder shall continue in favor of such
successor.
18. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
19. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
20. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Delaware,
unless otherwise specified herein.
21. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by the Executive within
fifty (50) miles from the location of the Bank, in accordance with the rules of
the American Arbitration Association then in effect. Judgment may be entered on
the arbitrator's award in any court having jurisdiction; provided, however, that
Executive shall be entitled to seek specific performance of his right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under, or in connection with, this Agreement.
In the event any dispute or controversy arising under or in connection
with Executive's termination is resolved in favor of the Executive, whether by
judgment, arbitration or settlement, Executive shall be entitled to the payment
of all back-pay, including salary, bonuses and any other cash compensation,
fringe benefits and any compensation and benefits due Executive under this
Agreement.
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22. INDEMNIFICATION AND ATTORNEYS' FEES.
(a) The Holding Company shall indemnify, hold harmless and defend
Executive against reasonable costs, including legal fees, incurred by him in
connection with his consultation with legal counsel or arising out of any
action, suit or proceeding in which he may be involved, as a result of his
efforts, in good faith, to defend or enforce the terms of this Agreement.
(b) In the event any dispute or controversy arising under or in connection
with Executive's termination is resolved in favor of the Executive, whether by
judgment, arbitration or settlement, Executive shall be entitled to the payment
of all back-pay, including salary, bonuses and any other cash compensation,
fringe benefits and any compensation and benefits due Executive under this
Agreement.
(c) The Holding Company shall indemnify, hold harmless and defend
Executive for all acts or omissions taken or not taken by him in good faith
while performing services for the Holding Company to the same extent and upon
the same terms and conditions as other similarly situated officers and directors
of the Holding Company. If and to the extent that the Holding Company maintains,
at any time during the Employment Period, an insurance policy covering the other
officers and directors of the Holding Company against law suits, the Holding
Company shall use its best efforts to cause Executive to be covered under such
policy upon the same terms and conditions as other similarly situated officers
and directors.
[Signatures appear on the following page.]
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SIGNATURES
IN WITNESS WHEREOF, Queens County Bancorp, Inc. has caused this Amended
and Restated Agreement to be executed and its seal to be affixed hereunto by its
duly authorized officer and its directors, and Executive has signed this Amended
and Restated Agreement, on the 7th day of February 1997.
ATTEST: QUEENS COUNTY BANCORP, INC.
_____________________________ BY: _______________________________
Secretary Duly Authorized Officer
[SEAL]
WITNESS:
______________________________ _______________________________
Executive
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