Exhibit 10.1
NEW YORK COMMUNITY BANCORP, INC.
EMPLOYMENT AGREEMENT
AGREEMENT made as of ____________, 2006 (this "Agreement"), by and between
NEW YORK COMMUNITY BANCORP, INC., a Delaware corporation, with its principal
place of business at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 (the "Company"), and
______________, (the "Executive").
WHEREAS, the Company desires to continue to provide for the Executive's
employment by the Company;
NOW THEREFORE, in consideration of the mutual covenants contained herein,
the Company and the Executive agree as follows:
1. EMPLOYMENT. The Executive shall serve the Company as ___________. In
such position(s), the Executive shall have the duties, responsibilities,
functions, and authority determined and designated from time to time by the
Board of Directors of the Company. The Executive also agrees to serve as an
officer of one or more Company affiliates upon such designation. The Executive
shall render such administrative and management services to the Company and its
affiliates as are customarily performed by persons in a similar executive
capacity.
2. EFFECTIVE DATE AND TERM. The Company agrees to employ the Executive
during an initial period of three (3) years beginning on the date first above
written (the "Effective Date") and ending on the day before the third (3rd)
anniversary of the Effective Date, and during the period of any additional
extensions described below in this Section 2 (the "Term of Employment"). The
parties intend that, at any point in time during the Executive's employment
hereunder, the then-remaining Term of Employment shall be three (3) years. On
the day after the Effective Date and on each day thereafter, the Term of
Employment shall be extended by one day, such that on any date the Term of
Employment will expire on the day before the third (3rd) anniversary of such
date. These extensions shall continue unless: (i) the Company gives notice to
the Executive that it has elected to discontinue the extensions; (ii) the
Executive gives notice to the Company that the Executive has elected to
discontinue the extensions; or (iii) the Executive's employment with the Company
is terminated, whether by resignation, Disability (as provided in Section 12.1),
discharge or otherwise. On the earlier of (i) the date on which such a notice is
deemed given or (ii) the effective date of a termination of the Executive's
employment with the Company, the Term of Employment shall be converted to a
fixed period of three (3) years ending on the day before the third (3rd)
anniversary of such date (provided, however, that, subject to any rights of the
Executive under this Agreement, the Term of Employment shall terminate on such
earlier date as may be specifically provided in this Agreement in the event of
the Executive's death, Retirement, Voluntary Termination or Termination for
Cause or Termination Without Cause). The last day of such term, as so extended
from time to time, is herein sometimes referred to as the "Expiration Date".
3. COMPENSATION AND BENEFITS. The compensation and benefits payable to
the Executive under this Agreement shall be as follows, it being understood that
(i) references to benefits offered by, or to officers of, the Company are
intended to include benefits offered by, or to officers of, any affiliate of the
Company which employs the Executive and (ii) payments or benefits required to be
provided by the Company may be provided by an affiliate:
3.1 SALARY. For all services rendered by the Executive to the Company
and its affiliates, the Executive shall be entitled to receive a base
salary at an annual rate not less than the Executive's base salary as
in effect on the Effective Date, subject to increase from time to time
in accordance with the usual practices of the Company with respect to
review of compensation of its senior executives. Any increase in the
Executive's base salary shall become the "base salary" for purposes of
this Agreement. The Executive's salary shall be payable in periodic
installments in accordance with the Company's usual practice for its
senior executives.
3.2 EMPLOYEE BENEFITS. The Executive shall also be entitled to
participate in any and all employee benefit plans, medical insurance
plans, disability income plans, retirement plans, bonus incentive
plans, and other benefit plans from time to time in effect for senior
executives of the Company. Such participation shall be subject to (i)
the terms of the applicable plan documents, (ii) generally applicable
policies of the Company and (iii) the discretion of the Board or any
administrative or other committee provided for in, or contemplated by,
such plans.
3.3 INCENTIVE COMPENSATION. The Executive shall be eligible to
participate in any incentive compensation or bonus program sponsored
by the Company on such terms as the Board of Directors of the Company
may establish for the Executive's participation.
3.4 BUSINESS EXPENSES. The Company shall provide for, or reimburse,
the Executive's reasonable travel and other business expenses
(including, without limitation, automobile and cellphone expenses)
incurred by the Executive in the performance of the Executive's duties
and responsibilities, subject to such reasonable requirements with
respect to substantiation and documentation as may be specified by the
Company.
3.5 LEAVE. The Executive shall be entitled to leave (vacation, sick
and personal) in accordance with the Company's standard policies for
senior executives; provided, however, that the Executive shall receive
not less than four (4) weeks vacation leave during each calendar year.
3.6 GENERAL. Nothing paid to the Executive under any plan, policy or
arrangement currently in effect or made available in the future shall
be deemed to be in lieu of other compensation to the Executive as
described in this Agreement.
3.7 OTHER EMPLOYEE BENEFITS. Executive shall be entitled to
participate in any compensatory plans, arrangements or programs the
Company makes available to its senior executive officers, including,
but not limited to, stock compensation programs, supplemental
retirement arrangements, or executive health or life insurance
programs, subject to, and on a basis consistent with, the terms and
conditions of such plans, arrangements or programs. The Executive's
participation in such plans, arrangements or programs shall not be
deemed in lieu of other compensation to which the Executive is
entitled under this Agreement.
4. EXTENT OF SERVICE. During the Term of Employment, the Executive shall
devote the Executive's full time, best efforts and business judgment, skill and
knowledge to the advancement of the Company's interests and to the discharge of
the Executive's duties and responsibilities hereunder. The Executive shall not
engage in any other business activity, except as may be approved by the Board;
provided, however, that nothing herein shall be construed as preventing the
Executive from:
(a) investing the Executive's assets in such form or manner as shall not
require any material services on the Executive's part in the operations or
affairs of the companies or the other entities in which such investments
are made, provided that the Executive may not own any interest in any
entity that competes with the Company or any affiliate (other than up to
4.9% of the outstanding voting stock of such an entity that is a publicly
traded entity); or
(b) serving on the board of directors of any company not in competition
with the Company or any affiliate, provided that the Executive shall not
render any material services with respect to the operations or affairs of
any such company; or
(c) engaging in religious, charitable or other community or non-profit
activities which do not impair the Executive's ability to fulfill the
Executive's duties and responsibilities under this Agreement.
5. TERMINATION UPON DEATH. In the event of the Executive's death during
the Term of Employment, the Executive's employment (and the Term of Employment)
shall terminate on the date of the Executive's death. The Company shall pay to
the Executive's beneficiary, designated in writing to the Company prior to the
Executive's death (or to the Executive's estate, if the Executive fails to make
such designation), (i) any base salary or other compensation earned through the
date of death, plus (ii) any other compensation and benefits as may be provided
in accordance with the terms and provisions of any applicable plans and
programs, if any, of the Company in which the Executive participated as of his
date of death.
6. DISCHARGE FOR CAUSE.
6.1 NOTICE AND DETERMINATION OF CAUSE. The Company may terminate the
Executive's employment during the Term of Employment for Cause. Such
termination shall be deemed to have occurred for Cause only if:
(a) the Board of Directors of the Company, by a separate
affirmative vote of at least three-fourths (3/4) of the entire
membership, determines that the Executive has (i) engaged in acts of
personal dishonesty which have resulted in loss to the Company, or one
of its affiliates, (ii) intentionally failed to perform stated duties,
(iii) committed a willful violation of any law, rule, regulation
(other than traffic violations or similar offenses), (iv) become
subject to the entry of a final cease and desist order which results
in substantial loss to the Company or one of its affiliates, (v) been
convicted of a crime or act involving moral turpitude, (vi) willfully
breached the Company's code of conduct and business ethics, (vii) been
disqualified or barred by any governmental or self-regulatory
authority from serving in the Executive's then-current employment
capacity or (viii) willfully attempted to obstruct or failed to
cooperate with any investigation authorized by the Board of Directors
or any governmental or self-regulatory entity. No act or failure to
act on the part of the Executive shall be considered "willful" unless
it is done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive's action or omission was
in the best interests of the Company. Any act or failure to act that
is based upon authority given pursuant to a resolution duly adopted by
the Board of Directors, or upon the advice of legal counsel for the
Company, shall be conclusively presumed to be done, or omitted to be
done, by the Executive in good faith and in the best interests of the
Company; and
(b) at least ten (10) days prior to the vote contemplated by
Section 6.1(a), the Company has provided the Executive with notice of
intent of the Company to discharge the Executive for Cause, detailing
with particularity the facts and circumstances which are alleged to
constitute Cause (the "Notice of Intent to Discharge"); and
(c) after the giving of the Notice of Intent to Discharge and
before the taking of the votes contemplated by Section 6.1(a), the
Executive (together with the Executive's legal counsel, if the
Executive so desires) is afforded a reasonable opportunity to make
both written and oral presentations before the Board of Directors for
the purpose of refuting the alleged grounds for Cause for the
Executive's discharge; and
(d) after the vote contemplated by Section 6.1(a), the Company
has furnished to the Executive a notice of termination which shall
specify the effective date of the Executive's termination of
employment (which shall in no event be earlier than the date on which
such notice is deemed given) and include a copy of a resolution or
resolutions adopted by the Board of Directors authorizing the
termination of the Executive's employment for Cause and stating with
particularity the facts and circumstances found to constitute Cause
for the Executive's discharge (the "Final Discharge Notice").
6.2 SUSPENSION; FINAL DISCHARGE. Following the giving of a Notice of
Intent to Discharge, the Company may temporarily suspend the Executive's
duties and authority and, in such event, may also suspend the payment of
salary and other cash compensation, but not the Executive's participation
in retirement, insurance and other employee benefit plans. If the Executive
is discharged for Cause, all payments withheld during the period of
suspension shall be deemed forfeited and shall not be payable to the
Executive. If the Company does not give a Final Discharge Notice to the
Executive within one hundred twenty (120) days after giving a Notice of
Intent to Discharge, the Notice of Intent to Discharge shall be deemed
withdrawn and any future action to discharge the Executive for Cause shall
require the giving of a new Notice of Intent to Discharge.
6.3 EFFECT OF TERMINATION. In the event of termination pursuant to
this Section 6, the Term of Employment shall terminate and the Company
shall pay to the Executive an amount equal to the sum of (i) base salary or
other compensation earned through the date of termination, plus (ii) any
other compensation and benefits as may be provided in accordance with the
terms and provisions of any applicable plans and programs, if any, of the
Company. All other obligations of the Company under this Agreement shall
terminate as of the date of termination.
7. TERMINATION BY THE EXECUTIVE.
7.1 TERMINATION BY THE EXECUTIVE FOR GOOD REASON.
(a) The Executive shall be entitled to terminate employment
hereunder for or with Good Reason (as defined in Section 7.4). Upon
any such termination, the Executive shall be entitled to receive the
benefits set forth in Section 9. A termination of employment by the
Executive for Good Reason shall be effectuated by giving the Company
written notice ("Notice of Termination for Good Reason") of the
termination, setting forth in reasonable detail the specific conduct
of the Company that constitutes Good Reason and the specific
provision(s) of this Agreement on which the Executive relies. A
termination of employment by the Executive for Good Reason shall be
effective on the fifth business day following the date when the Notice
of Termination for Good Reason is given, unless the notice sets forth
a later date (which date shall in no event be later than thirty (30)
days after the notice is given).
(b) The failure to set forth any fact or circumstance in a
Notice of Termination for Good Reason shall not constitute a waiver of
the right to assert, and shall not preclude the Executive from
asserting, such fact or circumstance in an attempt to enforce any
right under or provision of this Agreement.
7.2 OTHER VOLUNTARY TERMINATION BY THE EXECUTIVE. During the Term of
Employment, the Executive may effect, upon sixty (60) days prior written
notice to the Company, a Voluntary Termination of employment hereunder and
thereupon the Term of Employment shall end. A "Voluntary Termination" shall
mean a termination of employment by the Executive on the Executive's own
initiative other than (i) a termination due to death or Disability (as
defined in Section 12), (ii) a termination for Good Reason (as defined in
Section 7.4), (iii) a termination due to Retirement (as defined in Section
7.3), or (d) a termination as a result of the normal expiration of the full
Term of Employment. If, during the Term of Employment, the Executive's
employment is terminated due to a Voluntary Termination, the Term of
Employment shall thereupon end and the Company shall pay to the Executive
an amount equal to the sum of (i) base salary or other compensation earned
through the date of termination, plus (ii) any other compensation and
benefits as may be provided in accordance with the terms and provisions of
any applicable plans and programs, if any, of the Company.
7.3 TERMINATION DUE TO RETIREMENT. "Retirement" shall mean the
termination of the Executive's employment with the Company for any reason
by the Executive at any time after the Executive attains "Retirement Age"
(as hereinafter defined). "Retirement Age" means the earlier to occur of
(i) age 65 or (ii) such other age which the Company, by resolution of the
Board, may establish as the Executive's Retirement Age. The Executive may
terminate employment hereunder due to Retirement upon thirty (30) days
prior written notice to the Company. If, during the Term of Employment, the
Executive's employment is terminated due to Retirement, the Term of
Employment shall thereupon end and the Executive shall be entitled to (i)
base salary or other compensation earned through the Retirement Date, and
(ii) any other compensation and benefits as may be provided in accordance
with the terms and provisions of any applicable plans and programs, if any,
of the Company.
7.4 GOOD REASON. For purposes of this Agreement, the term "Good
Reason" shall mean any of the following:
(i) any change in the duties, functions or responsibilities of
the Executive that is inconsistent in any material and
adverse respect with the Executive's duties, functions or
responsibilities with the Company and its affiliates at the
Effective Date (including any material and adverse
diminution of such duties, functions or responsibilities);
(ii) a reduction of the Executive's base salary other than in
connection with an across-the-board reduction in base
salary for all similarly situated employees;
(iii) the relocation of the Executive's office to a location more
than thirty (30) miles from its location at the Effective
Date; or
(iv) the taking of any action by the Company or any of its
affiliates or successors which would materially and
adversely affect the Executive's overall compensation and
benefits package, excluding (A) changes to the compensation
and benefits package made on a non-discriminatory basis to
substantially all similarly situated employees and (B) any
isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied reasonably promptly after
receipt of written notice thereof given by the Executive.
(v) failure to nominate or reelect the Executive as a member of
the Board of the Company if the Executive is serving on
such Board as of the Effective Date, or the failure to
reappoint the Executive as an officer of the Company.
(vi) the liquidation or complete dissolution of the Company; or
(vii) a material breach of this Agreement by the Company.
7.5 CHANGE IN CONTROL. For purposes of this Agreement, a "Change in
Control" shall be deemed to have occurred in any of the following events:
(i) individuals who, on the date of this Agreement, constitute
the Board (the "Incumbent Directors") cease for any reason
to constitute at least half of the Board, provided that any
person becoming a director subsequent to such time, whose
election or nomination for election was approved by a vote
of at least two-thirds (2/3) of the Incumbent Directors
then on the Board (either by a specific vote or by approval
of the proxy statement of the Company in which such person
is named as a nominee for director, without written
objection to such nomination) shall be an Incumbent
Director; provided, however, that no individual initially
elected or nominated as a director of the Company as a
result of an actual or threatened election contest with
respect to directors or as a result of any other actual or
threatened solicitation of proxies or consents by or on
behalf of any person other than the Board shall be deemed
to be an Incumbent Director;
(ii) any "person" (as such term is defined in Section 3(a)(9) of
the Securities Exchange Act of 1934 (the "Exchange Act")
and as used in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act) is or becomes a "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 25%
or more of the combined voting power of the Company's then
outstanding securities eligible to vote for the election of
the Board (the "Company Voting Securities"); provided,
however, that the event described in this paragraph (ii)
shall not be deemed to be a Change in Control by virtue of
any of the following acquisitions: (A) by the Company or
any subsidiary, (B) by any employee benefit plan (or
related trust) sponsored or maintained by the Company or
any subsidiary, (C) by any underwriter temporarily holding
securities pursuant to an offering of such securities or
(D) a transaction (other than one described in (iii) below)
in which Company Voting Securities are acquired from the
Company, if a majority of the Incumbent Directors approve a
resolution providing expressly that the acquisition
pursuant to this clause (D) does not constitute a Change in
Control under this paragraph (ii);
(iii) the consummation of a merger, consolidation, statutory
share exchange or similar form of corporate transaction
involving the Company or any of its subsidiaries that
requires the approval of the Company's stockholders,
whether for such transaction or the issuance of securities
in the transaction (a "Business Combination"), unless
immediately following such Business Combination: (A) at
least 50% of the total voting power of (x) the corporation
resulting from such Business Combination (the "Surviving
Corporation"), or (y) if applicable, the ultimate parent
corporation that directly or indirectly has beneficial
ownership of 100% of the voting securities eligible to
elect directors of the Surviving Corporation (the "Parent
Corporation"), is represented by the Company Voting
Securities that were outstanding immediately prior to such
Business Combination (or, if applicable, is represented by
shares into which such Company Voting Securities were
converted pursuant to such Business Combination), and such
voting power among (and only among) the holders thereof is
in substantially the same proportion as the voting power of
such Company Voting Securities among the holders thereof
immediately prior to the Business Combination, (B) no
person (other than any employee benefit plan (or related
trust) sponsored or maintained by the Surviving Corporation
or the Parent Corporation) is or becomes the beneficial
owner, directly or indirectly, of 25% or more of the total
voting power of the outstanding voting securities eligible
to elect directors of the Parent Corporation (or, if there
is no Parent Corporation, the Surviving Corporation) and
(C) at least 50% of the members of the board of directors
of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation) following the
consummation of the Business Combination were Incumbent
Directors at the time of the Company Board's approval of
the execution of the initial agreement providing for such
Business Combination; or
(iv) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company or a sale of all
or substantially all of the Company's assets.
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because any person acquires beneficial ownership of more than 25%
of Company Voting Securities as a result of the acquisition of Company Voting
Securities by the Company which reduces the number of Company Voting Securities
outstanding; provided, that if after such acquisition by the Company such person
becomes the beneficial owner of additional Company Voting Securities that
increases the percentage of outstanding Company Voting Securities beneficially
owned by such person, a Change in Control of the Company shall then occur.
8. TERMINATION BY THE COMPANY WITHOUT CAUSE. The Executive's employment
with the Company may be terminated without Cause by the Board, provided,
however, that the Company shall have the obligation upon any such termination to
make the payments to the Executive provided for under Section 9 of this
Agreement.
9. CERTAIN TERMINATION BENEFITS. In the event of termination pursuant to
Section 7.1 or 8, the Executive shall be entitled to each of the following
benefits:
9.1 EARNINGS TO DATE OF TERMINATION. An amount equal to the sum of
(i) base salary or other compensation earned through the date of
termination, plus (ii) the Executive's pro rata share (based on the portion
of the then-current calendar year during which the Executive was employed
before termination of the Executive's employment) of the average of the
aggregate annual amounts paid to the Executive as bonuses or other cash
incentive compensation for the three (3) calendar years preceding the
termination of employment, plus (iii) any other compensation and benefits
as may be provided in accordance with the terms and provisions of any
applicable plans and programs, if any, of the Company.
9.2 LUMP SUM PAYMENT. A lump sum severance benefit equal to the sum
of the following items:
(a) three (3) times the Executive's "Highest Total
Compensation". "Highest Total Compensation" shall mean the Executive's
Total Compensation in the calendar year among the three most recently
completed calendar years preceding the date of his termination of
employment in which the Executive received the highest Total
Compensation. "Total Compensation" for each year shall be the
aggregate of (i) all base salary paid for such year; (ii) any bonuses
or other incentive compensation paid during such year (whether paid in
the form of cash of immediately vested shares of Company common
stock); (iii) any amount which is contributed by the Company on the
Executive's behalf pursuant to a salary reduction agreement and which
is not included in the Executive's gross income under Sections 125,
132(f) or 402(e)(3) of the Internal Revenue Code of 1986, as amended;
(iv) any amounts earned but deferred with respect to such calendar
year, and (v) any other amounts reported on the Executive's Form W-2
for such year (but excluding any income realized by the Executive upon
the exercise of non-statutory stock options or upon a disqualifying
disposition of stock acquired upon the exercise of incentive stock
options; and
(b) three (3) times the Executive's Average Retirement Plan
Credit. "Average Retirement Plan Credit" shall mean an amount equal to
the average of the contributions or allocations made to the Executive
by the Company during the three (3) most recently completed calendar
years preceding the Executive's termination of employment under all
tax-qualified retirement plans sponsored by the Company. For purposes
of the preceding sentence, (i) the value of contributions or
allocations in the form of Company common stock shall be determined by
reference to the closing price of the common stock on the New York
Stock Exchange on the date of allocation and (ii) the determination of
the Executive's Average Retirement Plan Credit shall exclude any
allocation under the Company's Employee Stock Ownership Plan made
solely on account of a Change in Control.
Subject to Section 17.20, the severance benefit payment under this Section 9.2
shall be made to the Executive in one lump sum on the date of the Executive's
termination of employment.
9.3 BENEFIT CONTINUATION. Continuation of the medical, dental and
life insurance benefits described in Section 3.2 and existing on the date
of termination at the level in effect on, and at the same out-of-pocket
premium cost to the Executive as of, the date of termination for a period
of thirty-six (36) months following the Executive's date of termination of
employment.
9.4 VESTING OF STOCK AWARDS AND OPTIONS. If the Executive's
termination of employment occurs on or after the effective date of a Change
in Control, there shall be an acceleration of all vesting provisions, so
that as of the date of termination of the Executive's employment, all stock
awards made by the Company to the Executive, to the extent then unvested or
forfeitable, shall become immediately and fully vested and non-forfeitable,
and all options to purchase common stock of the Company, to the extent then
not exercisable, shall become immediately and fully exercisable.
10. ADJUSTMENT FOR UNAVAILABILITY OF BENEFITS. If the benefits under
any benefit plan or program continued pursuant to Section 9.3 may not be
provided under any such plan to the Executive or to the Executive's dependents
because the Executive is no longer deemed to be an employee of the Company or an
affiliate, the Company shall pay or provide for coverage on a comparable basis
for the Executive and, where applicable, the Executive's dependents.
11. DEATH OR DISABILITY BEFORE COMPLETION OF CHANGE IN CONTROL.
11.1 CERTAIN PAYMENTS. The Executive shall be entitled to receive
payments provided for under Section 9 of this Agreement that would have
been payable if the Executive had resigned with Good Reason on the date of
the Executive's termination of employment if
(a) the Executive's employment terminates due to Disability
pursuant to Section 12 or due to death, and
(b) either
(i) such termination of employment occurred within one (1)
year after the occurrence of a Change in Control; or
(ii) such termination occurred within one (1) year after the
occurrence of a Preliminary Change in Control (as hereinafter
defined), AND, in addition, a Change in Control occurs within two
(2) years after such termination of employment.
11.2 PRELIMINARY CHANGE IN CONTROL. "Preliminary Change in Control"
shall mean each of (i) the signing of a definitive agreement for a
transaction that, if consummated, would result in a Change in Control, (ii)
the commencement of a tender offer that, if successful, would result in a
Change in Control, and (iii) the circulation of a proxy statement seeking
proxies in opposition to management in an election contest that, if
successful, would result in a Change in Control. Any payment required to be
made pursuant to this Section 11 shall be deferred without interest until,
and shall be payable immediately upon, the actual occurrence of a Change in
Control. Payments to be made pursuant to this Section 11 shall be in lieu
of and in substitution for payments required to be made in connection with
disability pursuant to Section 12.
12. DISABILITY.
12.1 TERMINATION DUE TO DISABILITY. The Company may terminate the
Executive's employment upon a determination, by vote of a majority of the
Board, acting in reliance on the written advice of a medical professional
acceptable to the Board, that the Executive is suffering from a physical or
mental impairment which, at the date of the determination, has prevented
the Executive from performing the Executive's assigned duties on a
substantially full-time basis for a period of at least one hundred and
eighty (180) days during the period of one (1) year ending with the date of
the determination or is likely to result in death or prevent the Executive
from performing the Executive's assigned duties on a substantially
full-time basis for a period of at least one hundred and eighty (180) days
during the period of one (1) year beginning with the date of the
determination (such impairment, the "Disability"). In such event:
(a) The Company shall pay to the Executive an amount equal to
the sum of (i) base salary or other compensation earned through the
date of termination, plus (ii) any other compensation and benefits as
may be provided in accordance with the terms and provisions of any
applicable plans and programs, if any, of the Company.
(b) In addition to the amounts payable pursuant to Section
12.1(a), the Company shall continue to pay the Executive the
Executive's base salary, at the annual rate in effect for the
Executive immediately prior to the termination of the Executive's
employment, during the Initial Continuation Period. The "Initial
Continuation Period" shall commence on the date of termination of
employment pursuant to Section 12.1 and shall end on the earliest of:
(i) the expiration of one hundred and eighty (180) days after the date
of termination of the Executive's employment; (ii) the date on which
long-term disability insurance benefits are first payable to the
Executive under any long-term disability insurance plan ("LTD Plan")
covering employees of the Company (the "LTD Eligibility Date"); (iii)
the date of the Executive's death; and (iv) the Expiration Date. If
the end of the Initial Continuation Period is neither the LTD
Eligibility Date nor the date of the Executive's death, the Company
shall continue to pay the Executive the Executive's base salary, at an
annual rate equal to sixty percent (60%) of the annual rate in effect
for the Executive immediately prior to the termination of the
Executive's employment (the "60% Amount"), during an additional period
ending on the earliest of the LTD Eligibility Date, the date of the
Executive's death and the Expiration Date. While receiving disability
payments under such LTD Plan, the Company shall pay to the Executive
an additional payment of such an amount, if any, as may be necessary
so that the aggregate of such additional payment and the Executive's
disability income payments will equal the 60% Amount, and the
Executive shall continue to participate in the Company's benefit plans
and to receive other benefits as specified in Section 3.2 until the
Expiration Date, with all such benefits to be at the level in effect
on, and at the same out-of-pocket cost to the Executive as of, the
date of Disability.
12.2 EFFECTIVE DATE OF TERMINATION. A termination of employment due to
Disability under this Section 12 shall be effected by notice of termination
given to the Executive by the Company and shall take effect on the later of
the effective date of termination specified in such notice or the date on
which the notice of termination is deemed given to the Executive.
13. EXCISE TAXES.
13.1 COVERED BENEFITS. "Covered Benefits" shall mean any payment or
benefit paid or provided to the Executive by the Company or any affiliate
or any successor in interest to the Company (whether pursuant to this
Agreement or otherwise) that will be (or in the opinion of Tax Counsel (as
defined below) might reasonably be expected to be) subject to any excise
tax (the "Excise Tax") imposed under Section 4999 of the Internal Revenue
Code of 1986, as amended (the "Code"). In the event that at any time during
or after the Term of Employment the Executive shall receive any Covered
Benefits, the Company shall pay to the Executive an additional amount (the
"Gross-Up Payment") such that the net amount retained by the Executive from
the Gross-Up Payment, after deduction of any federal, state and local
income taxes, Excise Tax, and FICA and Medicare withholding taxes on the
Gross-Up Payment, shall be equal to the Excise Tax on the Covered Benefits.
For purposes of determining the amount of such Excise Tax on the Covered
Benefits, the amount of the Covered Benefits that shall be taken into
account in calculating the Excise Tax shall be equal to (i) the Covered
Benefits, less (ii) the amount of such Covered Benefits that, in the
opinion of tax counsel selected by the Company and reasonably acceptable to
the Executive ("Tax Counsel"), are not parachute payments (within the
meaning of Section 280G(b)(1) of the Code).
13.2 CERTAIN ASSUMPTIONS. For purposes of this Section 13, the
Executive shall be deemed to pay federal income taxes at the highest
marginal rate of federal income taxation in the calendar year in which the
Excise Tax is payable and state and local income taxes at the highest
marginal rate of taxation in the state and locality of the Executive's
residence on the effective date of the Executive's termination, net of the
reduction in federal income taxes which could be obtained from deduction of
such state and local taxes. Except as otherwise provided herein, all
determinations required to be made under this Section 13 shall be made by
Tax Counsel, which determinations shall be conclusive and binding on the
Executive and Company, absent manifest error.
13.3 TAX INDEMNIFICATION. The Company shall indemnify and hold the
Executive harmless from any and all losses, costs and expenses (including
without limitation, reasonable attorney's fees, reasonable accountant's
fees, interest, fines and penalties of any kind) which the Executive incurs
as a result of any administrative or judicial review of the Executive's
liability under Section 4999 of the Code by the Internal Revenue Service or
any comparable state agency through and including a final judicial
determination or final administrative settlement of any dispute arising out
of the Executive's liability for the Excise Tax or otherwise relating to
the classification for purposes of Section 280G of the Code of any of the
Covered Benefits or other payment or benefit in the nature of compensation
made or provided to the Executive by the Company. The Executive shall
promptly notify the Company in writing whenever the Executive receives
notice of the commencement of any judicial or administrative proceeding,
formal or informal, in which the federal tax treatment under Section 4999
of the Code of any amount paid or payable under this Agreement or otherwise
is being reviewed or is in dispute (including a notice of audit or other
inquiry concerning the reporting of the Executive's liability under Section
4999). The Company may assume control at its expense over all legal and
accounting matters pertaining to such federal or state tax treatment
(except to the extent necessary or appropriate for the Executive to resolve
any such proceeding with respect to any matter unrelated to the Covered
Benefits or other payment or benefit in the nature of compensation made or
provided to the Executive by the Company) and the Executive shall cooperate
fully with the Company in any such proceeding. The Executive shall not
enter into any compromise or settlement or otherwise prejudice any rights
the Company may have in connection therewith without prior consent of the
Company. In the event that the Company elects not to assume control over
such matters, the Company shall promptly reimburse the Executive for all
expenses related thereto as and when incurred upon presentation of
appropriate documentation relating thereto.
14. CONFIDENTIAL INFORMATION. The Executive will not disclose to any other
Person (as defined in Section 17.2) (except as required by applicable law or in
connection with the performance of the Executive's duties and responsibilities
hereunder), or use for the Executive's own benefit or gain, any confidential
information of the Company or any affiliate obtained by the Executive incident
to the Executive's employment with the Company or its affiliates. The term
"Confidential Information" includes, without limitation, financial information,
business plans, prospects and opportunities (such as lending relationships,
financial product developments, or possible acquisitions or dispositions of
business or facilities) which have been discussed or considered by the
management of the Company or its affiliates but does not include any information
which has become part of the public domain by means other than the Executive's
failure to honor the obligations hereunder.
15. NO MITIGATION; NO OFFSET. In the event of any termination of
employment under this Agreement, the Executive shall be under no obligation to
seek other employment or to mitigate damages, and there shall be no offset
against any amounts due to the Executive under this Agreement for any reason,
including, without limitation, on account of any remuneration attributable to
any subsequent employment that the Executive may obtain. Any amounts due under
this Agreement are in the nature of severance payments or liquidated damages, or
both, and are not in the nature of a penalty.
16. INDEMNIFICATION AND INSURANCE.
16.1 INDEMNIFICATION. To the maximum extent permitted under applicable
law, during the Term of Employment and for a period of six years
thereafter, the Company shall indemnify the Executive against and hold the
Executive harmless from any costs, liabilities, losses and exposures to the
fullest extent and on the most favorable terms and conditions that similar
indemnification is offered to any director or officer of the Company or any
affiliate thereof.
16.2 INSURANCE. During the Term of Employment and for a period of six
years thereafter, the Company shall cause the Executive to be covered by
and named as an insured under any policy or contract of insurance obtained
by either the Company to insure directors and officers against personal
liability for acts or omissions in connection with service as an officer or
director of the Company or any of its affiliates service in other
capacities at its request. The coverage provided to the Executive pursuant
to this Section 16 shall be of the same scope and on the same terms and
conditions as the coverage (if any) provided to other officers or directors
of the Company.
17. MISCELLANEOUS.
17.1 CONFLICTING AGREEMENTS. The Executive hereby represents and
warrants that the execution of this Agreement and the performance of the
Executive's obligations hereunder will not breach or be in conflict with
any other agreement to which the Executive is a party or is bound, and that
the Executive is not now subject to any covenants against competition or
similar covenants which would affect the performance of the Executive's
obligations hereunder.
17.2 DEFINITION OF "PERSON". For purposes of this Agreement, the term
"PERSON" shall mean an individual, a corporation, an association, a
partnership, an estate, a trust and any other entity or organization.
17.3 WITHHOLDING. All payments made under this Agreement shall be net
of any tax or other amounts required to be withheld under applicable law.
17.4 ARBITRATION. The Company and Executive agree that any claim,
dispute or controversy arising under or in connection with this Agreement
(including, without limitation, any such claim, dispute or controversy
arising under any federal, state or local statute, regulation or ordinance
or any of the Company's employee benefit plans, policies or programs) shall
be resolved solely and exclusively by binding arbitration. The arbitration
shall be held in the County of Nassau, New York (or at such other location
as shall be mutually agreed to by the parties). The arbitration shall be
conducted in accordance with the Commercial Arbitration Rules (the "Rules")
of the American Arbitration Association (the "AAA") in effect at the time
of the arbitration, except that the arbitrator shall be selected by
alternatively striking from a list of five arbitrators supplied by the AAA.
All fees and expenses of the arbitration, excluding a transcript, shall be
borne equally by the parties. Each party will pay for the fees and expenses
of its own attorneys, experts, witnesses, and preparation and presentation
of proofs and post-hearing briefs (unless the Executive prevails on a claim
for which attorney's fees are recoverable under the Agreement). Any action
to enforce or vacate the arbitrator's award shall be governed by the
Federal Arbitration Act, if applicable, and otherwise by applicable state
law. If either the Company or Executive pursues any claim, dispute or
controversy against the other in a proceeding other than the arbitration
provided for herein, the responding party shall be entitled to dismissal or
injunctive relief regarding such action and recovery of all costs, losses
and attorney's fees related to such action. Notwithstanding the provisions
of this paragraph, either party may seek injunctive relief in a court of
competent jurisdiction, whether or not the case is then pending before the
panel of arbitrators. Following the court's determination of the injunction
issue, the case shall continue in arbitration as provided herein.
17.5 INDEMNIFICATION FOR ATTORNEYS' FEES. In the event any dispute or
controversy arising under or in connection with the Executive's termination
of this Agreement is resolved in favor of The Executive, whether by
judgment, arbitration or settlement, The Executive shall be entitled to the
payment of: (i) all legal fees and expenses incurred by the Executive in
resolving such dispute or controversy, and (ii) any back-pay, including
salary, bonuses and any other cash compensation, fringe benefits and any
compensation and benefits due the Executive under this Agreement.
17.6 INTERPRETATION. The recitals hereto constitute an integral part
of this Agreement. References to Sections include subsections, which are
part of the related Section (e.g., a section numbered "Section 5.5" would
be part of "Section 5" and references to "Section 5" would also refer to
material contained in the subsection described as "Section 5.5").
17.7 ASSIGNMENT; SUCCESSORS AND ASSIGNS, ETC.
(a) This Agreement is personal to the Executive and, without the
prior written consent of the Company, shall not be assignable by the
Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and permitted assigns.
(c) The Company may not assign this Agreement or any interest
herein without the prior written consent of the Executive and without
such consent any attempted transfer or assignment shall be null and of
no effect; provided, however, that the Company shall require any
successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company expressly to assume and to agree
to perform this Agreement in the same manner and to the same extent
that the Company would have been required to perform it if no such
succession had taken place. As used in this Agreement, "the Company"
shall mean both the Company as defined above and any such successor
that assumes and agrees to perform this Agreement, by operation of law
or otherwise.
17.8 ENFORCEABILITY. If any portion or provision of this Agreement
shall to any extent be declared illegal or unenforceable by a court of
competent jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those
as to which it is so declared illegal or unenforceable, shall not be
affected thereby, and each portion and provision of this Agreement shall be
valid and enforceable to the fullest extent permitted by law.
17.9 REDUCTIONS. Notwithstanding anything to the contrary contained in
this Agreement, any and all payments and benefits to be provided to the
Executive hereunder are subject to reduction to the extent required by
applicable statutes, regulations, rules and directives of federal, state
and other governmental and regulatory bodies having jurisdiction over the
Company and its affiliates. The Executive confirms that the Executive is
aware of the fact that the Federal Deposit Insurance Corporation has the
power to preclude the Company or its affiliates from making payments to the
Executive under this Agreement under certain circumstances. The Executive
agrees that neither the Company nor its affiliates shall be deemed to be in
breach of this Agreement if it is precluded from making a payment otherwise
payable hereunder by reason of regulatory requirements binding on the
Company or its affiliates, as the case may be.
17.10 WAIVER. No waiver of any provision hereof shall be effective
unless made in writing and signed by the waiving party. The failure of any
party to require the performance of any term or obligation of this
Agreement, or the waiver by any party of any breach of this Agreement,
shall not prevent any subsequent enforcement of such term or obligation or
be deemed a waiver of any subsequent breach.
17.11 NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and
delivered in person or sent by registered or certified mail, postage
prepaid, and addressed to the Executive at the Executive's last known
address on the books of the Company or, in the case of the Company, at its
main office, attention to the office of the Chief Operating Officer, with a
copy to the General Counsel.
17.12 ELECTION OF REMEDIES. An election by the Executive to resign for
Good Reason under the provisions of this Agreement shall not constitute a
breach by the Executive of any agreement the Executive may have with the
Company and shall not be deemed a voluntary termination of employment by
the Executive for the purpose of interpreting the provisions of any of the
Company's benefit plans, programs or policies.
17.13 AMENDMENT. This Agreement may be amended or modified only by a
written instrument signed by the Executive and by a duly authorized
representative of the Company.
17.14 NO EFFECT ON LENGTH OF SERVICE. Nothing in this Agreement shall
be deemed to prohibit the Company from terminating the Executive's
employment before the end of the Term of Employment with or without notice
for any reason. This Agreement shall determine the relative rights and
obligations of the Company and the Executive in the event of any such
termination. In addition, nothing in this Agreement shall require the
termination of the Executive's employment at the expiration of the Term of
Employment. Any continuation of the Executive's employment beyond the
expiration of the Term of Employment shall be on an "at-will" basis unless
the Company and the Executive agree otherwise.
17.15 ALLOCATION OF OBLIGATIONS AS BETWEEN THE COMPANY AND ITS
AFFILIATES. The parties understand that the Executive will perform
substantial services for the Company, and its affiliates. Unless otherwise
determined by the Board of Directors of the Company, the Executive shall
not be entitled to compensation in addition to the compensation set forth
in Section 3 of this Agreement as a result of the Executive's serving as an
officer of any affiliate of the Company. The Company and its affiliates
shall apportion between them the amounts to be paid under this Agreement,
based upon the services rendered by the Executive to each of the affiliates
and the Company, respectively. Any entitlement of the Executive to
severance compensation or other termination benefits under this Agreement
shall be determined on the basis of the aggregate compensation payable to
the Executive by the affiliates and the Company, and liability therefore
shall be apportioned between the affiliates and the Company in the same
manner as compensation paid to the Executive for services to each of them.
It is the intent and purpose of this Section 17.15 that the Executive have
the same legal and economic rights that the Executive would have if all of
the Executive's services were rendered to and all of the Executive's
compensation were paid by the Company.
17.16 PAYMENTS TO ESTATE OR BENEFICIARIES. In the event of the
Executive's death prior to the completion by the Company of all payments
due the Executive under this Agreement, the Company shall continue such
payments (other than payments which by their terms cease upon death) to the
Executive's beneficiary designated in writing to the Company prior to the
Executive's death (or to the Executive's estate, if the Executive fails to
make such designation) and, as applicable, to the Executive's surviving
dependents.
17.17 ENTIRE AGREEMENT; EFFECT ON PRIOR AGREEMENTS. This Agreement
constitutes the entire agreement between the parties pertaining to its
subject matter and supersedes all prior and contemporaneous agreements,
understandings, negotiations, prior draft agreements, and discussions of
the parties, whether oral or written.
17.18 COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be
executed in two or more counterparts, all of which shall be considered one
and the same agreement and shall become effective when one or more
counterparts have been signed by each party and delivered to the other
party, it being understood that all parties need not sign the same
counterpart. This Agreement may be executed by facsimile signatures.
17.19 GOVERNING LAW. This is a New York contract and shall be
construed under and be governed in all respects by the laws of the State of
New York without giving effect to its principles of conflicts of laws.
17.20 EFFECT OF CODE SECTION 409A. Notwithstanding anything in this
Agreement to the contrary, if the Company in good faith determines that
amounts that, as of the effective date of the Executive's termination of
employment are or may become payable to the Executive upon termination of
his employment hereunder are required to be suspended or delayed for six
months in order to satisfy the requirements of Section 409A of the Code,
then the Company will so advise the Executive, and any such payments shall
be suspended and accrued for six months, whereupon they shall be paid to
the Executive in a lump sum (together with interest thereon at the
then-prevailing prime rate). The Executive agrees that the Company shall be
deemed to be in breach of this Agreement if it delays making a payment
otherwise payable hereunder by reason of Section 409A.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
by the Company, by its duly authorized officer, and by the Executive, as of the
date first above written.
NEW YORK COMMUNITY BANCORP, INC. EXECUTIVE
By:
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Its:
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Attest: Witness:
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