EXHIBIT 10.17
THE XXXXXX SAVINGS BANK
EMPLOYMENT AGREEMENT
This AGREEMENT ("Agreement") is made effective as of February 16, 1999, by
and between The Xxxxxx Savings Bank (the "Institution"), a state chartered
savings institution with its principal offices at 0000 Xxx Xxxxxxxx Xxxxxxxxx,
Xxxxxx, Xxx Xxxx 00000, Xxxxxx Bancorp, Inc., a corporation organized under the
laws of the State of Delaware, the holding company for the Institution (the
"Company"), and Xxxx X. Xxxxxxxxx ("Executive").
WHEREAS, the Institution 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 Institution
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:
1. POSITION AND RESPONSIBILITIES.
During the period of Executive's employment hereunder, Executive agrees to
serve as the Chairman of the Board of the Company and Vice Chairman of the
Institution. The Executive shall render administrative and management services
to the Company and the Institution such as are customarily performed by persons
in a similar executive officer capacity. During said period, Executive also
agrees to serve as a director of the Company and the Institution and, if
elected, as an officer and director of any subsidiary of the Institution.
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 and shall continue
through the period ending on the last day of the month in which he attains age
65, that is, July 31, 2002.
(b) During the period of Executive's employment hereunder, except for
periods of absence occasioned by illness, reasonable vacation periods, and
reasonable leaves of absence, Executive shall devote substantial time,
attention, skill and efforts to the performance of his duties hereunder
including activities and services related to the organization, operation and
management of the Institution and participation in community and civic
organizations; provided, however, that, with the approval of the Board of
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Directors of the Institution, 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 Institution or materially affect the performance of
Executive's duties pursuant to this Agreement.
(c) Notwithstanding anything herein contained to the contrary, Executive's
employment with the Institution may be terminated by the Institution or
Executive during the term of this Agreement, subject to the terms and conditions
of this Agreement. However, Executive shall not perform, in any respect,
directly or indirectly, during the pendency of his temporary or permanent
suspension or termination from the Institution, duties and responsibilities
formerly performed at the
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Institution as part of his duties and responsibilities as Chairman of the Board
of the Company and Vice Chairman of the Institution.
3. COMPENSATION AND REIMBURSEMENT.
(a) The Executive shall be entitled to an annual rate of salary from the
Institution equal to the greater of (i) $500,000 per year or (ii) if higher, the
annual rate of salary payable by the Institution to the second highest paid
officer or employee taking into account all forms of cash compensation ("Base
Salary"). Base Salary shall include any amounts of compensation deferred by
Executive under any qualified or unqualified plan maintained by the Institution.
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 Board or by a Committee of the
Board delegated such responsibility by the Board. The Committee or the Board may
increase Executive's Base Salary. Any increase in Base Salary shall become the
"Base Salary" for purposes of this Agreement. In addition to the Base Salary
provided in this Section 3(a), the Institution shall also provide Executive, at
no premium cost to Executive, with all such other benefits as provided uniformly
to permanent full-time employees of the Institution.
(b) In exchange for the Executive's agreement not to compete with the
Company or the Institution set forth in Section 10(a) hereof, the Executive
shall, in addition to the Base Salary provided for by paragraph (a) of this
Section 3, be entitled to additional compensation during the term of this
Agreement at an annual rate equal to $175,000. Such noncompete compensation
shall be payable bi-weekly.
(c) Executive shall 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, stock or
option plans, health-and-accident plans, medical coverage or any other employee
benefit plan or arrangement made available by the Institution at present or 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 shall be entitled to incentive
compensation and bonuses as provided in any plan or arrangement of the
Institution in which Executive is eligible to participate. Subject to the
provisions of Section 3(e) of this Agreement, 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.
(d) In addition to the Base Salary provided for by paragraph (a) of this
Section 3, the noncompete compensation provided for by paragraph (b) of this
Section 3 and other compensation provided for by paragraph (c) of this Section
3, the Institution shall pay or reimburse Executive for all reasonable travel
and other reasonable expenses incurred in the performance of Executive's
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.
(e) The total aggregate present value of the compensation and benefits
provided to the Executive by the Institution under Subsections (a), (b), (c) and
(e) of this Section 3 shall not be less than or greater than $1,000,000 per year
(approximately prorated for any applicable portion of a calendar year) (the
"Limit"). To the extent that the compensation provided for in Subsections (a),
(b), (c) and (e) of this Section 3 each year during the term of this Agreement
does not at least equal the Limit, the Institution shall provide the Executive
with grants of stock options, option-related
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awards or awards of the Company's common stock under the Xxxxxx Bancorp, Inc.
1997 Stock-Based Incentive Plan or other plan or arrangement, valued using a
generally accepted valuation methodology (such as market value for common stock
grants and Black-Scholes or alternative option pricing methods) acceptable to
the Institution and the Executive, or cash payments under incentive or other
plans, such that the estimated aggregate present value of the compensation
provided to the Executive by the Institution under Subsections (a), (b), (c) and
(e) of this Section 3 shall equal the Limit.
(f) In addition to any pension benefits to which the Executive shall be
entitled (i) under any tax-qualified defined benefit plan of the Company, the
Institution or any of their respective subsidiaries or affiliates, or any
predecessor of any of them ("Retirement Plan") and (ii) under any supplemental
executive retirement or other defined benefit plan or other excess benefit plan
within the meaning of section 3(36) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") and under any plan to provide deferred income
for a select group of management or highly compensated employees of the Company,
the Institution or any of their respective subsidiaries or affiliates, or any
predecessor of any of them (collectively, "SERP"), the Company and the
Institution shall provide an additional supplemental pension benefit under this
Agreement equal to the difference between (A) the pension benefits that the
Executive would have been entitled to under the Retirement Plan and SERP if his
Base Salary under this Agreement were $675,000 (the Base Salary set forth in
Section 3(a) as it may be amended from time to time) and (B) the pension
benefits that the Executive is actually entitled to under the Retirement Plan
and SERP. The intent of this Section 3(f) is to permit the Executive to
continue to accrue additional pension benefits under the Retirement Plan and
SERP on and following the date of this Agreement, determined as if his
compensation under such Retirement Plan and SERP were based upon the prior
sentence. For purposes of interpretation, attached hereto as Exhibit A are
computations prepared by the Retirement System Group Inc. which set forth the
Executive's accrued monthly pension benefits as of the dates indicated under the
Retirement Plan and SERP of T R Financial Corp. and Roosevelt Savings Bank. The
supplemental pension benefits provided for in this Section 3(f) shall be paid in
the same form and at the same time and subject to the same terms and conditions,
and to the same beneficiaries, as the pension benefits provided to the Executive
under the Retirement Plan and/or the SERP, as the case may be. Notwithstanding
the foregoing, the Executive and the Institution may mutually agree that such
supplemental pension benefit be paid in a different form or commencing at a
different time.
(g) Executive's principal place of employment shall be at the Institution's
executive offices at the address first above written, or at such other location
in New York City or in Nassau or Suffolk County at which the Institution shall
maintain its principal executive offices, or at such other location as the Board
and Executive may mutually agree upon. The Institution shall provide Executive,
at his principal place of employment, with a private office, stenographic
services and other support services and facilities suitable to his position with
the Institution and necessary or appropriate in connection with the performance
of his assigned duties under this Agreement. The Institution shall provide
Executive with an automobile suitable to the position of Chairman of the Company
and Vice Chairman of the Institution, in accordance with the prior practices of
T R Financial Corp. and Roosevelt Savings Bank, and such automobile may be used
by Executive in carrying out his duties under the Agreement, including commuting
between his residence and his principal place of employment, and other personal
use. The Institution shall reimburse Executive for his ordinary and necessary
business expenses, including, without limitation, fees for memberships in such
clubs and organizations as Executive and the Board shall mutually agree are
necessary and appropriate for business purposes, and travel and entertainment
expenses, incurred in connection with the performance of his duties under this
Agreement, upon presentation to the
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Institution of an itemized account of such expenses in such form as the
Institution may reasonably require.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(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 of the following: (i) the termination by
the Institution of Executive's full-time employment hereunder for any reason
other than termination governed by Section 5(a) hereof, or for Cause, as defined
in Section 7 hereof; (ii) Executive's resignation from the Institution's employ,
upon, any (A) unless consented to by the Executive, failure to elect or reelect
or to appoint or reappoint Executive as Chairman of the Board of the Company and
Vice Chairman of the Institution or failure to nominate or renominate Executive
as a Director of the Institution or the Company as of the date of this
Agreement, (B) a material change in Executive's function, duties, or
responsibilities with the Institution, 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, unless consented
to by the Executive, (C) a relocation of Executive's principal place of
employment by more than 25 miles from its location at the effective date of this
Agreement, unless consented to by the Executive, (D) a reduction in the benefits
and perquisites to the Executive from those being provided as of the effective
date of this Agreement, unless consented to by the Executive, (E) a liquidation
or dissolution of the Company or the Institution, or (F) breach of this
Agreement by the Institution. Upon the occurrence of any event described in
clauses (A), (B), (C), (D), (E) or (F), above, Executive shall have the right to
elect to terminate his employment under this Agreement by resignation upon not
less than sixty (60) days prior written notice given within six full calendar
months after the event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, on the Date of
Termination, as defined in Section 8, the Institution 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, a sum equal to the sum of: (i)
the amount (subject to the Limit) of the remaining payments that the Executive
would have earned if he had continued his employment with the Institution during
the remaining term of this Agreement at the Executive's Base Salary at the Date
of Termination; (ii) (subject to the Limit) the amount equal to the annual
contributions or payments that would have been made on Executive's behalf to any
employee benefit plans of the Institution or the Company during the remaining
term of this Agreement based on contributions or payments made (on an annualized
basis) at the Date of Termination and (iii) the amount (subject to the Limit) of
the noncompete compensation that would have been payable during the remaining
term of this Agreement based on contributions or payments made (on an annualized
basis) at the Date of Termination. At the election of the Executive, which
election is to be made prior to an Event of Termination, such payment shall be
made: (a) in a lump sum as of the Executive's Date of Termination, (b) on a bi-
weekly basis in approximately equal installments during the remaining term of
the Agreement, or (c) on an annual basis in approximately equal installments
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.
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5. CHANGE IN CONTROL.
(a) For purposes of this Agreement, a "Change in Control" of the
Institution 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 Securities Exchange Act
of 1934, as amended ("Exchange Act")) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of voting
securities of the Institution or the Company representing 25% or more of the
Institution's or the Company's outstanding voting securities or right to acquire
such securities except for any voting securities of the Institution purchased by
the Company and any voting securities purchased by any employee benefit plan of
the Institution, or (B) individuals who constitute the Board on the date hereof
(the "Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the date
hereof whose election was approved by a vote of at least three-quarters of the
directors comprising the Incumbent Board, or whose nomination for election by
the Company's stockholders was approved by a Nominating Committee solely
composed of members which are Incumbent Board members, 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 Company or similar transaction (a
"Transaction") occurs or is effectuated, other than a Transaction following
which: (i) more than 50% of the equity ownership interests of the entity
resulting from such Transaction are beneficially owned (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) in substantially the same
relative proportions by persons who, immediately prior to such Transaction,
beneficially owned (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) more than 50% of the outstanding equity ownerships interests in
the Institution; and (ii) more than 50% of the securities entitled to vote
generally in the election of directors of the entity resulting from such
Transaction are beneficially owned (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) in substantially the same relative proportions by
persons who, immediately prior to such Transaction, beneficially owned (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) more than 50% of
the securities entitled to vote generally in the election of directors of the
Institution.
(b) If a Change in Control has occurred pursuant to Section 5(a) or the
Board has determined that a Change in Control has occurred, Executive shall be
entitled to the benefits provided in paragraphs (c) and (d), of this Section 5
upon his subsequent termination of employment at any time during the term of
this Agreement due to (i) Executive's dismissal, or (ii) Executive's voluntary
resignation following any demotion, loss of title, office or significant
authority or responsibility, reduction in the annual compensation or material
reduction in benefits or relocation of his principal place of employment by more
than 25 miles from its location immediately prior to the change in control,
unless such termination is because of his death or termination for Cause.
(c) Upon the Executive's entitlement to benefits pursuant to Section 5(b),
the Institution 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: (i)
the payments due for the remaining term of the Agreement, including the amount
of the noncompete compensation that would have been payable during the remaining
term of this Agreement; or (ii) three (3) times Executive's annual compensation
for the most recently completed year. Such annual compensation shall include
Base Salary, commissions, bonuses, contributions or accruals on behalf of
Executive to any pension and profit sharing plan, any benefits to be paid or
received under any stock-based benefit plan, severance payments, directors or
committee fees and fringe benefits paid or to be paid to the Executive during
such years. At the election of the
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Executive, which election is to be made prior to a Change in Control, such
payment shall be made: (a) in a lump sum, (b) on a bi-weekly basis in
approximately equal installments over a period of thirty-six (36) months
following the Executive's termination, or (c) on an annual basis in
approximately equal installments over a period of thirty-six (36) months
following the Executive's termination. Such payments shall not be reduced in the
event Executive obtains other employment following termination of employment.
(d) Upon the Executive's entitlement to benefits pursuant to Section 5(b),
the Institution will cause to be continued life, medical, dental and long-term
or other disability coverage substantially equivalent to the coverage maintained
by the Institution for Executive at no premium cost to Executive prior to his
severance. Such coverage and payments shall cease upon the expiration of
thirty-six (36) months following the Change in Control.
6. CHANGE OF CONTROL RELATED PROVISIONS.
In each calendar year that Executive is entitled to receive payments or
benefits under the provisions of this Employment Agreement, the Institution
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 Institution shall pay Executive,
subject to applicable withholding requirements under applicable 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 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:
Tax Rate
GUP = _________
1- Tax Rate
The "Tax Rate" for purposes of computing the GUP shall be the sum of
the highest marginal federal and state 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
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as the "Determinative Excess Parachute Payment") then the Institution's
independent accountants shall determine the amount (the "Adjustment
Amount") the Institution must pay to the Executive in order to put the
Executive in the same position as the Executive 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 Institution 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
Institution shall pay the Adjustment Amount to Executive. In no event
however, shall Executive make any payment under this paragraph to the
Institution.
7. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination because of: 1)
Executive's personal dishonesty, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties, willful
violation of any law, rule, regulation (other than traffic violations or similar
offenses), final cease and desist order or material breach of any provision of
this Agreement which results in a material loss to the Institution or the
Company, or 2) Executive's conviction of a felony. For the purposes of this
Section, no act, or 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 interests of the Bank 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. During the period beginning on the date of the Notice of
Termination for Cause pursuant to Section 8 hereof through the Date of
Termination, any unvested stock options and related limited rights granted to
Executive under any stock option plan shall not be exercisable nor shall any
unvested awards granted to Executive under any stock benefit plan of the
Institution, the Company or any subsidiary or affiliate thereof, vest. At the
Date of Termination, any such unvested stock options and related limited rights
and any such unvested awards shall become null and void and shall not be
exercisable by or delivered to Executive at any time subsequent to such
Termination for Cause.
8. NOTICE.
(a) Any purported termination by the Institution or by Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(b) "Date of Termination" shall mean 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);
provided, however, that if a dispute regarding the Executive's
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termination exists, the "Date of Termination" shall be determined in accordance
with Section 8(c) of this Agreement.
(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 Institution
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.
9. POST-TERMINATION OBLIGATIONS.
All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with this Section 9 for one (1) full year
after the earlier of the expiration of this Agreement or termination of
Executive's employment with the Institution. Executive shall, upon reasonable
notice, furnish such information and assistance to the Institution as may
reasonably be required by the Institution in connection with any litigation in
which it or any of its subsidiaries or affiliates is, or may become, a party.
10. NON-COMPETITION AND NON-DISCLOSURE.
(a) Upon any termination of Executive's employment hereunder pursuant to
Section 4 hereof, Executive agrees not to compete with the Institution for a
period of one (1) year following such termination in any city, town or county in
which the Executive's normal business office is located and the Institution has
an office or has filed an application for regulatory approval to establish an
office, determined as of the effective date of such termination, except as
agreed to pursuant to a resolution duly adopted by the Board. Executive agrees
that during such period and within said cities, towns and counties, Executive
shall not work for or advise, consult or otherwise serve with, directly or
indirectly, any entity whose business materially competes with the depository,
lending or other business activities of the Institution. The parties hereto,
recognizing that irreparable injury will result to the Institution, its business
and property in the event of Executive's breach of this Subsection 10(a) agree
that in the event of any such breach by Executive, the Institution, will be
entitled, in addition to any other remedies and damages available, to an
injunction to restrain the violation hereof by Executive, Executive's partners,
agents, servants, employees and all persons acting for or under the direction of
Executive. Executive represents and admits that in the event of the termination
of his employment pursuant to Section 7 hereof, Executive's experience and
capabilities are such that Executive can obtain employment in a business engaged
in other lines and/or of a different nature than the Institution, and that the
enforcement of a remedy by way of injunction will not prevent Executive from
earning a livelihood. Nothing herein will be construed
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as prohibiting the Institution from pursuing any other remedies available to the
Institution for such breach or threatened breach, including the recovery of
damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Institution as it
may exist from time to time, is a valuable, special and unique asset of the
business of the Institution. 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 Institution thereof to any person, firm,
corporation, or other entity for any reason or purpose whatsoever unless
expressly authorized by the Board of Directors or required by law.
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 Institution.
Further, Executive may disclose information regarding the business activities of
the Bank or Institution to the Superintendent of Banks of the State of New York,
the New York Banking Department, OTS, the Federal Deposit Insurance Corporation
("FDIC") or other appropriate bank regulator pursuant to a formal regulatory
request. In the event of a breach or threatened breach by the Executive of the
provisions of this Section, the Institution 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 Institution 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 Institution
from pursuing any other remedies available to the Institution for such breach or
threatened breach, including the recovery of damages from Executive.
11. SOURCE OF PAYMENTS.
(a) All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Institution subject to Section 11(b). The
Company, however, unconditionally guarantees payment and provision of all
amounts and benefits due hereunder to Executive and, if such amounts and
benefits due from the Institution are not timely paid or provided by the
Institution, such amounts and benefits shall be paid or provided by the Company.
(b) Notwithstanding any provision herein to the contrary, payments pursuant
to this 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
Company and the Institution on a quarterly basis. Notwithstanding any provision
herein to the contrary, to the extent that compensation payments and benefits,
as provided by this Agreement, are paid to or received by Executive under the
Employment Agreement dated February 16, 1999, between Executive and the Company,
such compensation payments and benefits paid by the Company will be subtracted
from any amount due simultaneously to Executive under similar provisions of this
Agreement.
12. 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 Institution or any
predecessor of the Institution and Executive, except that this Agreement shall
not affect or operate to reduce any benefit, compensation, tax indemnification
or other provision inuring to the benefit of the Executive under the Employment
Agreements dated as of January 23, 1997 between the Executive and T R Financial
Corp. and Roosevelt Savings Bank, respectively ("Prior Agreements"). Such Prior
Agreements shall continue in full force and effect except to the extent of the
payments made to the executive as of the
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closing of the merger of T R Financial Corp. with Xxxxxx Bancorp, Inc., which
transaction closed on the date of this Agreement. 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.
13. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Institution and their respective successors and assigns.
14. 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.
15. REQUIRED PROVISIONS.
Any payments made to Executive pursuant to this Agreement, or otherwise,
are subject to and conditioned upon compliance with 12 U.S.C. Section 1828(k)
and any rules and regulations promulgated thereunder, including 12 C.F.R. Part
359.
16. 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.
17. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
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18. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New York,
unless otherwise specified herein.
19. 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 Institution, 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.
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20. PAYMENT OF COSTS AND LEGAL FEES AND REINSTATEMENT OF BENEFITS.
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: (1) all legal fees incurred by Executive in resolving such dispute or
controversy, and (2) any back-pay, including salary, bonuses and any other cash
compensation, fringe benefits and any compensation and benefits due Executive
under this Agreement.
21. INDEMNIFICATION.
The Institution shall provide Executive (including his heirs, executors and
administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense and shall indemnify Executive (and his
heirs, executors and administrators) to the fullest extent permitted under New
York law against all expenses and liabilities reasonably incurred by him in
connection with or arising out of any action, suit or proceeding in which he may
be involved by reason of his having been a director or officer of the
Institution (whether or not he continues to be a director or officer at the time
of incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgments, court costs and attorneys' fees and
the cost of reasonable settlements.
22. SUCCESSOR TO THE INSTITUTION.
The Institution shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Institution or the Institution,
expressly and unconditionally to assume and agree to perform the Institution's
obligations under this Agreement, in the same manner and to the same extent that
the Institution would be required to perform if no such succession or assignment
had taken place.
[Remainder of Page Intentionally Left Blank]
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SIGNATURES
IN WITNESS WHEREOF, The Xxxxxx Savings Bank and Xxxxxx Bancorp, Inc. have
caused this Agreement to be executed and their seals to be affixed hereunto by
their duly authorized officers and directors, and Executive has signed this
Agreement, on the 16/th/ day of February, 1999.
ATTEST: THE XXXXXX SAVINGS BANK
/s/ R. Xxxxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------- ------------------------------
R. Xxxxxxx Xxxxx Xxxxxx X. Xxxxxxx
Secretary For the Board of Directors
[SEAL]
ATTEST: XXXXXX BANCORP, INC.
(Guarantor)
/s/ R. Xxxxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------- ------------------------------
R. Xxxxxxx Xxxxx Xxxxxx X. Xxxxxxx
Secretary For the Board of Directors
[SEAL]
WITNESS:
/s/ A. Xxxxxx Xxxx By: /s/ Xxxx X. Xxxxxxxxx
------------------------------- ------------------------------
A. Xxxxxx Xxxx Xxxx X. Xxxxxxxxx
Executive
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