EXHIBIT 10.4
FLUSHING FINANCIAL CORPORATION
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is made and
entered into as of the 28th day of November, 2000, by and between Flushing
Financial Corporation, a Delaware corporation having its executive offices at
000-00 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (the "Holding Company"), and
Xxxxxxx X. Xxxxxxx, residing at [ADDRESS ON FILE] ("Officer").
WITNESSETH:
WHEREAS, the Holding Company and the Officer are parties to an Employment
Agreement dated as of November 21, 1995 as amended as of June 18, 1996, July 16,
1996, and November 26, 1996; and
WHEREAS, the Holding Company considers the availability of the Officer's
services to be important to the successful management and conduct of the Holding
Company's business and desires to secure for itself the continued availability
of his services; and
WHEREAS, for purposes of securing for the Holding Company the Officer's
continued services, the Board of Directors of the Holding Company ("Board") has
authorized the proper officers of the Holding Company to enter into an amended
and restated employment agreement with the Officer on the terms and conditions
set forth herein; and
WHEREAS, the Officer is willing to make his services available to the
Holding Company on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and obligations hereinafter set forth, the Holding Company and the Officer
hereby agree as follows:
Section 1. Employment.
The Holding Company hereby agrees to employ the Officer, and the Officer
hereby agrees to accept such employment, during the period and upon the terms
and conditions set forth in this Agreement.
Section 2. Employment Period.
(a) Except as otherwise provided in this Agreement to the contrary, the
terms and conditions of this Agreement shall be and remain in effect during the
period of employment ("Employment Period") established under this section 2. The
Employment Period under this Amended and Restated Employment Agreement shall be
for a term commencing on November 28, 2000 and ending on November 21, 2003, plus
such extensions as are provided pursuant to section 2(b) of this Agreement.
(b) On or as of July 1, 2001, and on or as of each July 1 thereafter, the
Employment Period shall be extended for one additional year if and only if the
Board shall have authorized the extension of the Employment Period prior to July
1 of such year and the Officer shall not have notified the Holding Company prior
to July 1 of such year that the Employment Period shall not be so extended. If
the Board shall not have authorized the extension of the Employment Period prior
to July 1 of any such year, or if the Officer shall have given notice of
nonextension to the Holding Company prior to July 1 of such year, then the
Employment Period shall not be extended pursuant to this section 2(b) at any
time thereafter and shall end on the last day of its term as then in effect.
Notwithstanding the foregoing provisions of this Section 2(b), there shall be no
extension of the term of this Agreement as of July 1, 2003 and July 1, 2004, so
as to reduce the remaining term of the Agreement, and annual extensions shall
begin again as of July 1, 2005.
(c) Upon the termination of the Officer's employment with the Holding
Company, the extensions provided pursuant to section 2(b) shall cease (if such
extensions have not previously ceased).
Section 3. Title and Duties.
On the date on which the Employment Period commences, the Officer shall
hold the position of President and Chief Executive Officer of the Holding
Company and shall be a member of the Board with all of the powers and duties
incident to such positions under law and under the by-laws of the Holding
Company. During the Employment Period, the Officer shall: (a) devote his full
business time and attention (other than during weekends, holidays, vacation
periods and periods of illness or approved leaves of absence) to the business
and affairs of the Holding Company and its subsidiaries and use his best efforts
to advance the interests of the Holding Company and its subsidiaries, including
reasonable periods of service as an officer and/or board member of trade
associations, their related entities and charitable organizations; and (b)
perform such reasonable additional duties, as may be assigned to him by or under
the authority of the Board; provided, however, that the Officer shall be
permitted to devote a reasonable amount of time to service on the Board of
Directors of EDO Corporation, so long as such service shall not interfere with
his obligations under this Agreement. The Officer shall also serve as an officer
and director of Flushing Savings Bank, FSB (the "Bank") pursuant to the
Employment Agreement between the Officer and the Bank dated as of the date
hereof ("Bank Employment Agreement"). The Holding Company hereby acknowledges
that the Officer's service under this Agreement shall not be deemed to
materially interfere with the Officer's performance under the Bank Employment
Agreement or otherwise result in a breach of the Bank Employment Agreement. The
Officer shall have such authority as is necessary or appropriate to carry out
his duties under this Agreement.
Section 4. Compensation.
In consideration for services rendered by the Officer under this Agreement:
(a) The Holding Company shall pay to the Officer a salary at an annual rate
equal to the greater of (i) $420,000 or (ii) such higher annual rate as may be
prescribed by or under the authority of the Board (the "Current Salary"). In
addition, the Holding Company shall credit to the Officer 10% of the greater of
the amounts described in the preceding clauses (i) and (ii) to be deferred in
accordance with section 5(b). The Officer will undergo an annual salary and
performance review on or about June 30 of each year commencing in 2001. The
Current Salary payable under this section 4 shall be paid in approximately equal
installments in accordance with the Holding Company's customary payroll
practices.
(b) The Officer shall be eligible to participate in any bonus plan
maintained by the Holding Company for its officers and employees. If the Officer
shall earn any bonus under any bonus plan of the Bank but such bonus shall not
be paid by the Bank, the Holding Company shall pay such bonus to the Officer.
Section 5. Employee Benefits and Other Compensation.
(a) Except as otherwise provided in this Agreement, the Officer shall,
during the Employment Period, be treated as an employee of the Holding Company
and be entitled to participate in and receive benefits under the Holding
Company's employee benefit plans and programs, as well as such other
compensation plans or programs (whether or not employee benefit plans or
programs), as the Holding Company may maintain from time to time, in accordance
with the terms and conditions of such employee benefit plans and programs and
compensation plans and programs and with the Holding Company's customary
practices.
(b) If and to the extent that the Bank has not on or prior to such date
credited such amounts, as of the last day of each regular payroll period during
the Employment Period, the Holding Company shall credit to a bookkeeping account
maintained by the Holding Company (such Holding Company account and the account
established by the Bank under section 5(b) of the Bank Employment Agreement,
collectively, the "Deferred Compensation Account") 10% of the Current Salary
payable to the Officer during such period pursuant to section 4. The deferred
compensation provided under this section 5(b) shall be deemed to be invested in
one or more of the investment funds offered by Retirement System Fund, Inc. or
in such other funds as may be specified by the Holding
Company with the consent of the Officer ("Investment Funds"), in multiples of
10%, as directed by the Officer from time to time no more frequently than once
each calendar quarter. The Officer's Deferred Compensation Account shall be
credited at least quarterly with the earnings (or losses) on such investments.
The amount credited to the Officer's Deferred Compensation Account (including
earnings or losses) shall be paid by the Holding Company to the Officer (or in
the event of his death to his designated beneficiaries or, in the absence of any
designation, his estate) in a cash lump sum promptly after the Officer's
termination of employment with the Holding Company or the Bank (whichever may
occur first) for any reason. For the purpose of determining the amount of such
payment, the value of the account balance shall be determined ten (10) days
prior to the payment date. The Officer acknowledges that the deferred
compensation provided for in this section 5(b) shall not be taken into account
for purposes of computing any pension or other retirement benefit to which he
may be entitled under the Holding Company's benefit plans or programs.
(c) The Holding Company shall provide the Officer with a suitable
automobile for use in the performance of the Officer's duties hereunder and
shall reimburse the Officer for all expenses incurred in connection therewith.
(d) The Officer shall be entitled, without loss of pay, to vacation time in
accordance with the policies periodically established by the Board for senior
management officials of the Holding Company, which shall in no event be less
than four weeks in each calendar year. Except as provided in section 7(b), the
Officer shall not be entitled to receive any additional compensation from the
Holding Company on account of his failure to take a vacation, nor shall he be
entitled to accumulate unused vacation from one calendar year to the next except
to the extent authorized by the Board for senior management officials of the
Holding Company.
(e) On May 27 of each of the years 1996 through 2000, either the Bank or
the Holding Company has credited to a bookkeeping account maintained by it (such
Holding Company account and the account established by the Bank under section
5(e) of the Bank Employment Agreement, collectively, the "Supplemental
Retirement Account") a supplemental retirement benefit of $30,000. Prior to May
27, 2000, any interest or earnings obtained from investment of the supplemental
retirement benefit provided under this section 5(e) shall accrue to the Holding
Company. Following May 27, 2000, the supplemental retirement benefit shall be
deemed to be invested in one or more of the Investment Funds, in multiples of
10%, as directed by the Officer from time to time no more frequently than once
each calendar quarter, and the Officer's Supplemental Retirement Account shall
be credited at least quarterly with the earnings (or losses) on such
investments. Upon the Officer's termination of employment with the Holding
Company or the Bank (whichever may occur first) for any reason, the amount
credited to the Officer's Supplemental Retirement Account (including earnings or
losses credited as described above) shall be promptly paid by the Holding
Company to the Officer (or in the event of his death to his designated
beneficiaries or, in the absence of any designation, his estate) in a cash lump
sum. For the purpose of determining the amount of such payment, the value of the
account balance shall be determined ten (10) days prior to payment date.
(f) If and to the extent that the Bank has not on or prior to such date
credited such amount, on May 27 of each of the years 2001 through 2011, the
Holding Company shall credit to a bookkeeping account maintained by the Holding
Company (such Holding Company account and the account established by the Bank
under section 5(f) of the Bank Employment Agreement, collectively, the
"Additional SERP Account") an additional supplemental retirement benefit of
$50,000. Prior to May 27, 2011, any interest or earnings (or losses) obtained
from investment of the additional supplemental retirement benefit provided under
this section 5(f) shall accrue to the Holding Company and shall not be credited
to the Officer's Additional SERP Account, but may be utilized by the Holding
Company to discharge its obligations under this section 5(f). Following May 27,
2011, the additional supplemental retirement benefit shall be deemed to be
invested in one or more of the Investment Funds, in multiples of 10%, as
directed by the Officer from time to time no more frequently than once each
calendar quarter, and the Officer's Additional SERP Account shall be credited at
least quarterly with the earnings (or losses) on such investments. Upon the
Officer's termination of employment with the Holding Company or the Bank
(whichever may occur first) by reason of his death, or upon his voluntary
resignation without Good Reason, or upon his termination for "Cause" (as defined
in section 8(b) of this Agreement), the amount then credited to the Officer's
Additional SERP Account (disregarding earnings and losses prior to May 27, 2011)
shall be promptly paid by the Holding Company to the Officer (or in the case of
his death, to his designated beneficiaries or, in the absence of any
designation, to his estate) in a cash lump sum, and thereafter no additional
amounts shall be credited to the Officer's Additional SERP
Account. Upon the Officer's termination of employment with the Holding Company
or the Bank (whichever may occur first) by reason of retirement (which shall
mean termination of employment at a time when the Officer is eligible to receive
an Early, Normal, or Postponed Retirement Benefit under the Bank's Retirement
Plan), Disability (as defined in section 9(a)), voluntary resignation within one
year following an event that constitutes Good Reason (as defined in section
7(a)(i)), or discharge without "Cause", or in the event of the Officer's
termination of employment for any reason following a Change of Control, the
Holding Company shall promptly pay to the Officer a cash lump sum equal to (i)
$500,000, without regard to the amount then credited to his Additional SERP
Account, or (ii) the amount then credited to his Additional SERP Account if such
amount is greater than $500,000 and termination of employment occurs after May
27, 2011. Upon such payment, no further amount shall be payable under this
section 5(f).
(g) If and to the extent that the Bank has not funded such benefits under
the Bank Employment Agreement, the Holding Company shall fund in a "rabbi trust"
on an ongoing and current basis (i) the deferred compensation provided under
section 5(b) hereof, (ii) the supplemental retirement benefit provided under
section 5(e) hereof, and (iii) the additional supplemental retirement benefit
provided under section 5(f) hereof. The Trustee of such "rabbi trust" shall be
an independent bank or trust company.
(h) If any amounts deferred pursuant to this Agreement are found in a
"determination" (within the meaning of Section 1313(a) of the Internal Revenue
Code of 1986, as amended) to have been includible in gross income by the Officer
prior to payment of such amounts under this Agreement, such amounts shall be
immediately paid to the Officer, notwithstanding any other provision of this
Agreement providing for deferral.
Section 6. Working Facilities and Expenses.
The Officer's principal place of employment shall be at the executive
offices of the Holding Company in Queens County, New York or at such other
location upon which the Holding Company and the Officer may mutually agree. The
Holding Company shall provide the Officer, at his principal place of employment,
with a private office, stenographic services and other support services and
facilities consistent with his position with the Holding Company and necessary
or appropriate in connection with the performance of his duties under this
Agreement. The Holding Company shall reimburse the Officer for his ordinary and
necessary business expenses, including, without limitation, travel and
entertainment expenses, incurred in connection with the performance of his
duties under this Agreement, upon presentation to the Holding Company of an
itemized account of such expenses in such form as the Holding Company may
reasonably require.
Section 7. Termination with Holding Company Liability.
(a) In the event that the Officer's employment with the Bank and/or the
Holding Company shall terminate during the Employment Period on account of:
(i) the Officer's voluntary resignation from employment with
the Bank and the Holding Company within one year following an
event that constitutes "Good Reason," which is defined as:
(A) the failure of the Bank to elect or to reelect the
Officer to serve as its President and Chief Executive
Officer and a member of its board of directors, or such
other position as the Officer consents to hold, or the
failure of the Holding Company to elect or reelect the
Officer to serve as its President and Chief Executive
Officer and a member of its Board, or such other position as
the Officer consents to hold;
(B) the failure of the Bank or the Holding Company to
cure a material adverse change made by it in the Officer's
functions, duties, or responsibilities in his position with
the Bank or the Holding Company, respectively, within sixty
days following written notice thereof from the Officer;
(C) the failure of the Bank or the Holding Company to
maintain the Officer's principal place of employment at its
executive offices in Queens County, New York or at such
other location upon which the Bank or the Holding Company
and the Officer may mutually agree;
(D) the failure of the Board to extend the Employment
Period within the times provided in section 2(b) or the
failure of the Bank's board of directors to extend the
Employment Period under the Bank Employment Agreement within
the times provided in section 2(b) of such Agreement;
provided, however, that such failure shall not constitute
Good Reason until the earlier of 30 days after any
determination by the Board or the Bank's board of directors
that the Employment Period shall not be so extended or
August 1 of such year;
(E) the failure of the Bank or the Holding Company to
cure a material breach of the Bank Employment Agreement or
this Agreement by the Bank or the Holding Company,
respectively, within sixty days following written notice
thereof from the Officer; or
(F) after a Change of Control, the failure of any
successor company to the Bank to assume the Bank Employment
Agreement or of any successor company to the Holding Company
to assume this Agreement.
(ii) the discharge of the Officer by the Bank or the Holding
Company for any reason other than (A) for "Cause" as defined in
section 8(b) of this Agreement or (B) the Officer's death or
"Disability" as defined in section 9(a) of this Agreement; or
(iii) the Officer's voluntary resignation from employment
with the Bank and the Holding Company for any reason within the
sixty-day period commencing six months following a Change of
Control as defined in section 10;
then the Holding Company shall provide the benefits and pay to the Officer as
liquidated damages the amounts provided for under section 7(b).
(b) Upon the termination of the Officer's employment with the Bank and/or
the Holding Company under circumstances described in section 7(a), the Holding
Company shall pay and provide to the Officer:
(i) his earned but unpaid Current Salary as of the date of
termination, plus an amount representing any accrued but unpaid
vacation time and floating holidays;
(ii) if the Officer's termination of employment occurs after
a Change of Control, a pro rata portion of his bonus for the year
of termination, determined by multiplying the amount of the bonus
earned by the Officer for the preceding calendar year by the
number of full months of employment during the year of
termination, and dividing by 12. If the Officer's termination of
employment occurs prior to a Change of Control, the Compensation
Committee of the Bank or of the Holding Company may, in its sole
discretion, award the Officer a bonus for the year of
termination, in an amount determined by such Committee either at
the time of termination of employment or at the time bonuses to
active employees are awarded, which the Holding Company shall pay
to the Officer promptly after it has been awarded;
(iii) the benefits, if any, to which he is entitled as a
former employee under the Bank's and the Holding Company's
employee benefit plans and programs and compensation plans and
programs;
(iv) continued health and welfare benefits (including group
life, disability, medical and dental benefits), in addition to
that provided pursuant to section 7(b)(iii), to the extent
necessary to provide coverage for the Officer for the Severance
Period (as defined in section 7(c)). Such benefits shall be
provided through the purchase of insurance, and shall be
equivalent to the health and welfare benefits (including
cost-sharing percentages) provided to active employees of the
Bank and/or the Holding Company (or any successor thereof) as
from time to time in effect during the Severance Period. Where
the amount of such benefits is based on salary, they shall be
provided to the Officer based on the highest annual rate of
Current Salary achieved by the Officer during the Employment
Period. If the Officer had dependent coverage in effect at the
time of his termination of employment, he shall have the right to
elect to continue such dependent coverage for the Severance
Period. The benefits to be provided under this paragraph (iv)
shall cease to the extent that substantially equivalent benefits
are provided to the Officer (and/or his dependents) by a
subsequent employer of the Officer;
(v) if the Officer is age 55 or older at the end of the
Severance Period, he shall be entitled to elect coverage for
himself and his dependents under the Bank's and the Holding
Company's retiree medical and retiree life insurance programs.
Such coverage, if elected, shall commence upon the expiration of
the Severance Period, without regard to whether the Officer
commences his pension benefit at such time, and shall continue
for the life of each of the Officer and his spouse and for so
long as any of his other covered dependents remain eligible. The
coverage and cost-sharing percentage of the Officer and his
dependents under such programs shall be those in effect under
such programs on the date of the Officer's termination of
employment with the Bank or the Holding Company, and shall not be
adversely modified without the Officer's written consent;
(vi) within thirty days following his termination of
employment with the Bank or the Holding Company, a cash lump sum
payment in an amount equal to the Current Salary, bonus, and
deferred compensation that the Officer would have earned pursuant
to sections 4(a), 4(b), and 5(b), respectively, if he had
continued working for the Holding Company and the Bank for the
Severance Period. For purposes of this paragraph, (A) the amount
of bonus shall be the highest bonus, if any, paid to the Officer
by the Bank or the Holding Company under section 4(b) of the Bank
Employment Agreement or this Agreement within the three-year
period prior to the date of termination and (B) the amount of
deferred compensation shall be determined without any earnings on
the additional deferred compensation that would have been
credited under section 5(b) during the Severance Period. The
calculation of the amount payable pursuant to this clause (vi) is
set forth on Schedule A hereto; and
(vii) payment of the deferred compensation to which he is
entitled pursuant to section 5(b), the supplemental retirement
benefit to which he is entitled pursuant to section 5(e), and the
additional supplemental retirement benefit to which he is
entitled pursuant to Section 5(f) (in each case after crediting
to his Accounts established under such sections any amount which
was required to be credited to such Account pursuant to such
sections as of the date of his termination of employment but was
not so credited).
The lump sum payable pursuant to clause (vi) of this section 7(b) is to be paid
in lieu of all other payments of Current Salary, bonus, and deferred
compensation provided for under this Agreement relating to the period following
any such termination and shall be payable without proof of damages and without
regard to the Officer's efforts, if any, to mitigate damages. The Holding
Company and the Officer hereby stipulate that the damages which may be incurred
by the Officer 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 provided under this section 7(b) are reasonable under the
circumstances as a combination of liquidated damages and severance benefits. The
Officer shall not be entitled to any payment under this Agreement to make up for
benefits that would have been earned under the Bank's Retirement Plan, 401(k)
Savings Plan, and Supplemental Savings Incentive Plan (SSIP), and the Holding
Company's
Stock-Based Profit Sharing Plan had he continued working for the Bank and the
Holding Company for the Severance Period.
(c) For purposes of section 7, the Severance Period means:
(i) in the case of termination of employment prior to May
27, 2004, a period of 36 months;
(ii) in the case of termination of employment on or after
May 27, 2004, but prior to a Change of Control, a period of 12
months; and
(iii) in the case of termination of employment after a
Change of Control, a period of 36 months.
Section 8. Termination for Cause or Voluntary Resignation Without Good
Reason.
(a) In the event that the Officer's employment with the Holding Company
shall terminate during the Employment Period on account of:
(i) the discharge of the Officer by the Holding Company for
Cause; or
(ii) the Officer's voluntary resignation from employment
with the Holding Company for reasons other than those
constituting a Good Reason;
then the Holding Company shall have no further obligations under this Agreement,
other than (A) the payment to the Officer of his earned but unpaid Current
Salary as of the date of the termination of his employment; (B) the provision of
such other benefits, if any, to which he is entitled as a former employee under
the Bank's and the Holding Company's employee benefit plans and programs and
compensation plans and programs; and (C) the payment of the deferred
compensation to which he is entitled pursuant to section 5(b), the supplemental
retirement benefit to which he is entitled pursuant to section 5(e), and the
additional supplemental retirement benefit to which he is entitled pursuant to
Section 5(f) (in each case after crediting to his Accounts established under
such sections any amount which was required to be credited to such Account
pursuant to such sections as of the date of his termination of employment but
was not so credited).
(b) For purposes of this Agreement, the term "Cause" means the Officer's
(i) willful failure to perform his duties under this Agreement or under the Bank
Employment Agreement and failure to cure such failure within sixty days
following written notice thereof from the Holding Company or the Bank, or (ii)
intentional engagement in dishonest conduct in connection with his performance
of services for the Holding Company or the Bank or conviction of a felony.
Section 9. Disability or Death.
(a) The Officer's employment with the Holding Company may be terminated for
"Disability" if the Officer shall become disabled or incapacitated during the
Employment Period to the extent that he has been unable to perform the essential
functions of his employment for 270 consecutive days. Upon a termination of
employment for "Disability", the Holding Company shall pay to the Officer in
cash the following percentages of his Current Salary and deferred compensation
under sections 4 and 5(b) of this Agreement, until the end of the Employment
Period: 100% for the first six months, 75% for the next six months and 60%
thereafter for the remaining term, if any, of the Employment Period (less in
each case any benefits which may be payable to the Officer under the provisions
of disability insurance coverage in effect for Bank and/or Holding Company
employees). In addition the Officer shall receive a cash lump sum equal to the
amount of the Officer's Supplemental Retirement Account established pursuant to
section 5(e), and payment of his Deferred Compensation Account as provided in
section 5(b) and the additional supplemental retirement benefit to which he is
entitled pursuant to section 5(f) (in each case after
crediting to the Accounts established under such sections any amounts which were
required to be credited to such Accounts pursuant to sections 5(b), 5(e), and
5(f) as of the date of his termination of employment but were not so credited).
(b) In the event that the Officer's employment with the Holding Company
shall terminate during the Employment Period on account of death, the Holding
Company shall promptly pay the Officer's designated beneficiaries or, failing
any designation, his estate a cash lump sum payment equal to his earned but
unpaid Current Salary plus the amount of the Officer's Deferred Compensation
Account, Supplemental Retirement Account, and Additional SERP Account as
provided in sections 5(b), 5(e), and 5(f) (after crediting to such Accounts any
amounts which were required to be credited to such Accounts pursuant to sections
5(b), 5(e), and 5(f) as of the date of his death but were not so credited).
(c) In the event of the Officer's termination of employment on account of
death or Disability prior to a Change of Control, the Compensation Committee of
the Bank or of the Holding Company may, in its sole discretion, award the
Officer a bonus for the year of termination, in an amount determined by such
Committee either at the time of termination of employment or at the time bonuses
to active employees are awarded, in which case the Holding Company shall pay
such bonus to the Officer or, in the event of death, his designated
beneficiaries or estate, as the case may be, promptly after it is awarded. In
the event of the Officer's termination of employment on account of death or
Disability after a Change of Control, the Holding Company shall promptly pay the
Officer or, in the event of death, his designated beneficiaries or estate, as
the case may be, a pro rata portion of his bonus for the year of termination,
determined by multiplying the amount of the bonus earned by the Officer for the
preceding calendar year by the number of full months of employment during the
year of termination, and dividing by 12.
Section 10. Change of Control.
For purposes of this Agreement, the term "Change of Control" means:
(a) the acquisition of all or substantially all of the assets of the Bank
or the Holding Company by any person or entity, or by any persons or entities
acting in concert;
(b) the occurrence of any event if, immediately following such event, a
majority of the members of the Board of Directors of the Bank or the Holding
Company or of any successor corporation shall consist of persons other than
Current Members (for these purposes, a "Current Member" shall mean any member of
the Board of Directors of the Bank or the Holding Company as of July 18, 2000
and any successor of a Current Member whose nomination or election has been
approved by a majority of the Current Members then on the Board of Directors);
(c) the acquisition of beneficial ownership, directly or indirectly (as
provided in Rule 13d-3 of the Securities Exchange Act of 1934 (the "Act"), or
any successor rule), of 25% or more of the total combined voting power of all
classes of stock of the Bank or the Holding Company by any person or group
deemed a person under Section 13(d)(3) of the Act; or
(d) approval by the stockholders of the Bank or the Holding Company of an
agreement providing for the merger or consolidation of the Bank or the Holding
Company with another corporation where the stockholders of the Bank or the
Holding Company, immediately prior to the merger or consolidation, would not
beneficially own, directly or indirectly, immediately after the merger or
consolidation, shares entitling such stockholders to 50% or more of the total
combined voting power of all classes of stock of the surviving corporation.
Section 11. Excise Tax Gross-up.
In the event that the Officer becomes entitled to one or more payments
(with a "payment" including, without limitation, the vesting of an option or
other non-cash benefit or property, whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the Bank or the
Holding Company or any affiliated company or from or pursuant to the terms of
the Flushing Financial Corporation Employee Benefit Trust) (the "Total
Payments"), which are or become subject to the tax imposed by Section 4999 of
the Internal Revenue Code of 1986,
as amended (the "Code") (or any similar tax that may hereafter be imposed) (the
"Excise Tax"), the Holding Company shall pay to the Officer at the time
specified below an additional amount (the "Gross-up Payment") (which shall
include, without limitation, reimbursement for any penalties and interest that
may accrue in respect of such Excise Tax) such that the net amount retained by
the Officer, after reduction for any Excise Tax (including any penalties or
interest thereon) on the Total Payments and any federal, state and local income
or employment tax and Excise Tax on the Gross-up Payment provided for by this
section 11, but before reduction for any federal, state or local income or
employment tax on the Total Payments, shall be equal to the sum of (a) the Total
Payments, and (b) an amount equal to the product of any deductions disallowed
for federal, state or local income tax purposes because of the inclusion of the
Gross-up Payment in the Officer's adjusted gross income multiplied by the
highest applicable marginal rate of federal, state or local income taxation,
respectively, for the calendar year in which the Gross-up Payment is to be made.
For purposes of determining whether any of the Total Payments will be
subject to the Excise Tax and the amount of such Excise Tax,
(i) the Total Payments shall be treated as "parachute payments" within
the meaning of Section 280G(b)(2) of the Code, and all "excess parachute
payments" within the meaning of Section 280G(b)(1) of the Code shall be
treated as subject to the Excise Tax, unless, and except to the extent
that, in the written opinion of independent compensation consultants or
auditors of nationally recognized standing selected by the Holding Company
and reasonably acceptable to the Officer ("Independent Auditors"), the
Total Payments (in whole or in part) do not constitute parachute payments,
or such excess parachute payments (in whole or in part) represent
reasonable compensation for services actually rendered within the meaning
of Section 280G(b)(4) of the Code in excess of the base amount within the
meaning of Section 280G(b)(3) of the Code or are otherwise not subject to
the Excise Tax,
(ii) the amount of the Total Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of (A) the total
amount of the Total Payments or (B) the amount of excess parachute payments
within the meaning of Section 280G(b)(1) of the Code (after applying clause
(i) above), and
(iii) the value of any non-cash benefits or any deferred payment or
benefit shall be determined by the Holding Company's Independent Auditors
appointed pursuant to clause (i) above in accordance with the principles of
Sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-up Payment, the Officer
shall be deemed (A) to pay federal income taxes at the highest marginal rate of
federal income taxation for the calendar year in which the Gross-up Payment is
to be made; (B) to pay any applicable state and local income taxes at the
highest marginal rate of taxation for the calendar year in which the Gross-up
Payment is to be made, net of the maximum reduction in federal income taxes
which could be obtained from deduction of such state and local taxes if paid in
such year (determined without regard to limitations on deductions based upon the
amount of the Officer's adjusted gross income); and (C) to have otherwise
allowable deductions for federal, state and local income tax purposes at least
equal to those disallowed because of the inclusion of the Gross-up Payment in
the Officer's adjusted gross income. In the event that the Excise Tax is
subsequently determined to be less than the amount taken into account hereunder
at the time the Gross-up Payment is made, the Officer shall repay to the Holding
Company at the time that the amount of such reduction in Excise Tax is finally
determined (but, if previously paid to the taxing authorities, not prior to the
time the amount of such reduction is refunded to the Officer or otherwise
realized as a benefit by the Officer) the portion of the Gross-up Payment that
would not have been paid if such Excise Tax had been applied in initially
calculating the Gross-up Payment, plus interest on the amount of such repayment
at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the
Excise Tax is determined to exceed the amount taken into account hereunder at
the time the Gross-up Payment is made (including by reason of any payment the
existence or amount of which cannot be determined at the time of the Gross-up
Payment), the Holding Company shall make an additional Gross-up Payment in
respect of such excess (plus any interest and penalties payable with respect to
such excess) at the time that the amount of such excess is finally determined.
The Gross-up Payment provided for above shall be paid on the thirtieth day
(or such earlier date as the Excise Tax becomes due and payable to the taxing
authorities) after it has been determined that the Total Payments (or any
portion thereof) are subject to the Excise Tax; provided, however, that if the
amount of such Gross-up Payment or portion thereof cannot be finally determined
on or before such day, the Holding Company shall pay to the Officer on such day
an estimate, as determined by the Holding Company's Independent Auditors
appointed pursuant to clause (i) above, of the minimum amount of such payments
and shall pay the remainder of such payments (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code), as soon as the amount thereof
can be determined. In the event that the amount of the estimated payments
exceeds the amount subsequently determined to have been due, such excess shall
constitute a loan by the Holding Company to the Officer, payable on the fifth
day after demand by the Holding Company (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up
Payment is made, the amount of each Gross-up Payment shall be computed so as not
to duplicate any prior Gross-up Payment. The Holding Company shall have the
right to control all proceedings with the Internal Revenue Service that may
arise in connection with the determination and assessment of any Excise Tax and,
at its sole option, the Holding Company may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with any taxing
authority in respect of such Excise Tax (including any interest or penalties
thereon); provided, however, that the Holding Company's control over any such
proceedings shall be limited to issues with respect to which a Gross-up Payment
would be payable hereunder and the Officer shall be entitled to settle or
contest any other issue raised by the Internal Revenue Service or any other
taxing authority. The Officer shall cooperate with the Holding Company in any
proceedings relating to the determination and assessment of any Excise Tax and
shall not take any position or action that would materially increase the amount
of any Gross-up Payment hereunder.
Section 12. No Effect on Employee Benefit Plans or Compensation Programs.
Except as expressly provided in this Agreement, the termination of the
Officer's employment during the term of this Agreement or thereafter, whether by
the Holding Company or by the Officer, shall have no effect on the rights and
obligations of the parties hereto under the Holding Company's employee benefit
plans or programs or compensation plans or programs (whether or not employee
benefit plans or programs) that the Holding Company may maintain from time to
time.
Section 13. Successors and Assigns.
This Agreement will inure to the benefit of and be binding upon the
Officer, his legal representatives and estate or intestate distributees, and the
Holding 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
Holding Company may be sold or otherwise transferred.
Section 14. Notices.
Any communication to a party required or permitted 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 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 Officer:
Xxxxxxx X. Xxxxxxx
[ADDRESS ON FILE]
If to the Holding Company:
Flushing Financial Corporation
000-00 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Secretary
Section 15. 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 16. 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 17. Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, and all of which shall constitute one and the same
Agreement.
Section 18. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York, without reference to
conflicts of law principles.
Section 19. Headings.
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 20. 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 relating to the subject matter
hereof, including the Employment Agreement dated as of November 21, 1995, by and
between the Holding Company and the Officer, other than the Bank Employment
Agreement. No modifications of this Agreement shall be valid unless made in
writing and signed by the parties hereto.
Section 21. Funding.
The Holding Company has agreed to fund certain of its obligations to the
Officer under this Agreement in a "rabbi trust"; provided, however, that all
assets used by the Holding Company to fund its obligations shall be part of the
general assets of the Holding Company and shall be subject to all claims of the
Holding Company's creditors.
Section 22. Guarantee.
The Holding Company guarantees the payment by the Bank of any and all
benefits and compensation to which the Officer is entitled under the Bank
Employment Agreement.
Section 23. Non-duplication.
In the event that the Officer shall perform services for the Bank or any
other direct or indirect subsidiary of the Holding Company, any compensation or
benefits provided to the Officer by such other employer shall be applied to
offset the obligations of the Holding Company hereunder, it being intended that
this Agreement set forth the aggregate compensation and benefits payable to the
Officer for all services to the Holding Company and all of its direct or
indirect subsidiaries. The Officer hereby acknowledges that if any payment made
or benefit provided by the Holding Company under this Agreement is also required
to be made or provided by the Bank under the Bank Employment Agreement, such
payment or benefit by the Holding Company under this Agreement shall offset the
payment required to be made or benefit required to be provided by the Bank under
the Bank Employment Agreement.
Section 24. Required Regulatory Provisions.
Notwithstanding any other provision of this Agreement to the contrary, any
payments made to the Officer pursuant to this Agreement or otherwise are subject
to and conditioned upon their compliance with 12 U.S.C. section 1828(k) and any
regulations promulgated thereunder.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the day
and year first above written.
FLUSHING FINANCIAL CORPORATION
By: /S/ XXXXXX X. XXXXX, XX.
---------------------------------
Name: Xxxxxx X. Xxxxx, Xx
Title: Chairman
/S/ XXXXXXX X. XXXXXXX
------------------------------------
Xxxxxxx X. Xxxxxxx
Schedule A
Calculation of Amount Payable pursuant to Section 7(b), Clause (vi)
Assuming Termination of Employment December 1, 2000
----------------------------------------------------------------------
(1) Current Salary is greater of
(a) $420,000
(b) annual salary in effect
$ 420,000
----------------------------------------------------------------------
(2) Bonus is greatest of bonus paid in last 3 years
before termination
(a) $140,000 (1999 bonus)
(b) 90,000 (1998 bonus)
(c) 78,000 (1997 bonus)
$ 140,000
----------------------------------------------------------------------
(3) Deferred Compensation
10% of amount in Step (1) $ 42,000
----------------------------------------------------------------------
(4) Severance Period
36 months = 3 years
----------------------------------------------------------------------
(5) Amount Payable
3 times (1)+(2)+(3) $1,806,000
----------------------------------------------------------------------
