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EXHIBIT 10.5
XXXXXXX SAVINGS BANK, S.L.A.
EMPLOYMENT AGREEMENT
This AGREEMENT ("Agreement") is hereby entered into as of March 17, 2004, by and
between Xxxxxxx Savings Bank, S.L.A. (the "Bank"), a New Jersey-chartered
financial institution, with its principal offices at 0000 Xxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxxxx, 00000, Clifton Savings Bancorp, Inc. (the "Company"), a
federally-chartered corporation and the holding company of the Bank, and Xxxx X.
Xxxxxxxxx, Xx. ("Executive").
WHEREAS, the Bank desires to continue to assure itself of the services of
Executive for the period provided for in this Agreement; and
WHEREAS, Executive and the Board of Directors of the Bank desire to enter into a
new employment agreement setting forth the terms and conditions of the
continuing employment of Executive and the related rights and obligations of
each of the parties.
NOW, THEREFORE, in consideration of the promises and mutual covenants herein
contained, it is agreed as follows:
1. POSITION AND RESPONSIBILITIES.
(a) During the period of Executive's employment under this Agreement, Executive
agrees to serve as Chairman of the Board of the Bank. Executive shall have
responsibility for the general management and control of the business and
affairs of the Bank and its affiliates, and shall perform all duties and shall
have all powers which are commonly incident to the offices of Chairman of the
Board or which, consistent with that office, are delegated to him by the Board
of Directors of the Bank (the "Board of Directors").
(b) During the period of Executive's employment under this Agreement, except for
periods of absence occasioned by illness, vacation, and reasonable leaves of
absence, Executive shall devote substantially all of his business time,
attention, skill and efforts to the faithful performance of his duties under
this Agreement, including activities and services related to the organization,
operation and management of the Bank and its affiliates, as well as
participation in community, professional and civic organizations; provided,
however, that, with the approval of the Board of Directors, as evidenced by a
resolution of the Board of Directors, from time to time, Executive may serve, or
continue to serve, on the boards of directors of, and hold any other offices or
positions in, companies or organizations, which, in the judgment of the Board of
Directors, will not present any conflict of interest with the Bank or its
affiliates, or materially affect the performance of Executive's duties pursuant
to this Agreement.
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(c) The Bank will furnish Executive with the working facilities and staff
customary for executive officers with the title and duties set forth in this
Agreement and as are necessary for him to perform his duties. The location of
such facilities and staff shall be at the principal administrative offices of
the Bank.
2. TERM OF EMPLOYMENT.
(a) The term of this Agreement shall be (i) the initial term, consisting of the
period commencing on the date of this Agreement (the "Effective Date") and
ending on the third anniversary of the Effective Date, plus (ii) any and all
extensions of the initial term made pursuant to this Section 2.
(b) Commencing on the first anniversary of the Effective Date and as of each
anniversary thereafter, the disinterested members of the Board of Directors may
renew the term of this Agreement for an additional one (1) year period beyond
the then effective expiration date, provided that Executive shall not have given
at least sixty (60) days' written notice of his desire that the term not be
renewed.
(c) Notwithstanding anything contained in this Agreement to the contrary, either
Executive or the Bank may terminate Executive's employment with the Bank at any
time during the term of this Agreement, subject to the terms and conditions of
this Agreement.
3. COMPENSATION AND BENEFITS.
(a) BASE SALARY. The Bank agrees to pay Executive during the term of this
Agreement a base salary at the rate of $347,438 per annum, payable in accordance
with the Bank's customary payroll practices. The Board of Directors of the Bank
shall review annually the rate of Executive's base salary based upon factors
they deem relevant, and may maintain or increase his base salary, provided that
no such action shall reduce the rate of base salary below the rate in effect on
the Effective Date. In the absence of action by the Board of Directors,
Executive shall continue to receive a base salary at the per annum rate
specified on the Effective Date or, if another rate has been established under
the provisions of this Section 3, the rate last properly established by action
of the Board of Directors.
(b) INCENTIVE COMPENSATION. Executive shall be entitled to participate in
discretionary bonuses or other incentive compensation programs that the Board of
Directors may award from time to time to senior management employees pursuant to
bonus plans, or otherwise.
(c) AUTOMOBILE AND CELLULAR PHONE. The Company or the Bank shall provide
Executive with, and Executive shall have the primary use of, an automobile owned
or leased by the Company or the Bank and the Company or the Bank shall pay (or
reimburse Executive) for all expenses of insurance, registration, operation and
maintenance of the automobile. Executive shall comply with reasonable reporting
and expense limitations on the use of such automobile, as the Company or the
Bank may establish from time to time, and the Company or the Bank shall annually
include on Executive's Form W-2 any amount attributable to Executive's personal
use
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of such automobile. The Company or the Bank shall also provide Executive with a
cellular phone and shall pay (or reimburse) Executive for all reasonable
expenses related to the business use of such phone.
(d) VACATION AND HOLIDAYS. Executive shall take vacation at a time mutually
agreed upon by the Bank and Executive. Executive shall receive his base salary
and other benefits during periods of vacation. Executive shall also be entitled
to paid legal holidays in accordance with the policies of the Bank.
(e) OTHER EMPLOYEE BENEFITS. In addition to any other compensation or benefits
provided for under this Agreement, Executive shall be entitled to continue to
participate in any employee benefit plans, arrangements and perquisites of the
Bank in which he participated or was eligible to participate as of the Effective
Date. Executive shall also be entitled to participate in any employee benefits
or perquisites the Bank offers to full-time employees or executive management in
the future. The Bank will not, without Executive's prior written consent, make
any changes in such plans, arrangements or perquisites which would adversely
affect Executive's rights or benefits thereunder without separately providing
for an arrangement that ensures Executive receives or will receive the economic
value that Executive would otherwise lose as a result of such adverse effect.
Without limiting the generality of the foregoing provisions of this paragraph,
Executive shall be entitled to participate in or receive benefits under all
plans relating to stock options, restricted stock awards, stock purchases,
pension, profit sharing, employee stock ownership, supplemental retirement,
directors' retirement, group life insurance, medical and other health and
welfare coverage that are made available by the Bank at the Effective Time or at
any time in the future during the term of this Agreement, subject to and on a
basis consistent with, the terms, conditions and overall administration of such
plans and arrangements.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined) during
Executive's term of employment under this Agreement, the provisions of this
Section 4 shall apply. Unless Executive otherwise agrees, as used in this
Agreement, an "Event of Termination" shall mean and include any one or more of
the following: (i) the termination by the Bank of Executive's full-time
employment for any reason other than a termination governed by Section 7 of this
Agreement; or (ii) Executive's resignation from the Bank, upon, any (A) notice
to Executive of non-renewal of the term of this Agreement; (B) failure to
reappoint Executive as Chairman of the Board; (C) material change in Executive's
function, duties or responsibilities with the Bank or its affiliates, which
change would cause Executive's position to become of lesser responsibility,
importance or scope from the position and attributes thereof described in
Section 1 of this Agreement; (D) relocation of Executive's principal place of
employment by more than twenty-five (25) miles from its location at the
Effective Date of this Agreement; (E) material reduction in the benefits and
perquisites provided to Executive from those being provided as of the Effective
Date of this Agreement; (F) liquidation or dissolution of the Company or the
Bank; or (G) breach of this Agreement by the Bank or the Company. Upon the
occurrence of any event described in clauses (A) through (G), above, Executive
shall have the right to terminate his employment under this Agreement by
resignation upon not less than sixty (60) days' prior
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written notice given within six (6) full calendar months after the event giving
rise to Executive's right to elect to terminate his employment.
(b) Upon Executive's termination of employment in accordance with paragraph (a)
of this Section 4, as of the Date of Termination, as defined in Section 8 of
this Agreement, the Bank shall be obligated to pay Executive, or, in the event
of his death following the Date of Termination, his beneficiary or
beneficiaries, or his estate, as the case may be, an amount equal to the sum of:
(i) the base salary and incentive compensation that would have been paid to
Executive for the remaining term of this Agreement had the Event of Termination
not occurred (based on Executive's then current base salary and most recently
paid or accrued bonus at the time of the Event of Termination) plus (ii) the
value, as calculated by a recognized firm customarily performing such valuation,
of any stock options which, as of the Date of Termination, have been granted to
Executive but are not exercisable by Executive and the value of any restricted
stock awards which have been granted to Executive, but in which Executive does
not have a non-forfeitable or fully-vested interest as of the Date of
Termination plus (iii) the value of all employee benefits that would have been
provided to Executive for the remaining term of this Agreement had the Event of
Termination not occurred, based on the most recent level of contribution,
accrual or other participation by or on behalf of Executive. At the election of
Executive, which election is to be made prior to the Date of Termination, such
payments shall be made in a lump sum. In the event that no election is made,
payment to Executive will be made on a monthly basis in approximately equal
installments during the remaining unexpired term of this Agreement. Such
payments shall not be reduced in the event Executive obtains other employment
following termination of employment.
(c) In addition to the payments provided for in paragraph (b) of this Section 4,
upon Executive's termination of employment in accordance with the provisions of
paragraph (a) of this Section 4, to the extent that the Company or the Bank
continues to offer any life, medical, health, disability or dental insurance
plan or arrangement in which Executive or his dependents participates as of the
date of the Event of Termination (each being a "Welfare Plan"), Executive and
his covered dependents shall continue participating in such Welfare Plans,
subject to the same premium contributions on the part of Executive as were
required immediately prior to the Event of Termination until the earlier of (i)
his death; (ii) his employment by another employer other than one of which he is
the majority owner; or (iii) the end of the remaining term of this Agreement. If
the Company or the Bank does not offer the Welfare Plans at any time after the
Event of Termination, then the Company or the Bank shall provide Executive with
a payment equal to the premiums for such benefits for the period which runs
until the earlier of (i) his death; (ii) his employment by another employer
other than one of which he is the majority owner; or (iii) the end of the
remaining term of this Agreement.
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5. CHANGE IN CONTROL.
(a) For purposes of this Agreement, a "Change in Control" of the Bank or Company
shall mean one of the following events: (i) there occurs a change in control of
the Bank, as defined or determined either by the Bank's primary federal
regulator or under regulations promulgated by such regulator; (ii) as a result
of, or in connection with, a merger or other business combination, sale of
assets or contested election, the persons who were directors of the Bank before
such transaction or event cease to constitute a majority of the Board of
Directors of the Bank or its successor; (iii) the Bank transfers all or
substantially all of its assets to another corporation or entity which is not an
affiliate of the Bank; (iv) the Bank is merged or consolidated with another
corporation or entity and, as a result of such merger or consolidation, less
than 60% of the equity interest in the surviving or resulting corporation is
owned by the former shareholders or depositors of the Bank; (v) the Company
merges into or consolidates with another corporation, or merges another
corporation into the Company and, as a result, less than a majority of the
combined voting power of the resulting corporation immediately after the merger
or consolidation is held by persons who were stockholders of the Company
immediately before the merger or consolidation; (vi) the Company files, or is
required to file, a report on Schedule 13D, or another form or schedule required
under Sections 13(d) or 14(d) of the Securities Exchange Act of 1934, disclosing
that the filing person or persons acting in concert has or have become the
beneficial owner(s) of 25% or more of a class of the Company's voting
securities, except for beneficial ownership of Company voting shares held in a
fiduciary capacity by an entity of which the Company directly or indirectly owns
50% or more of its outstanding voting securities; (vii) during any period of two
consecutive years, individuals who constitute the Company's Board of Directors
at the beginning of the two-year period cease for any reason to constitute at
least a majority thereof, provided that any person becoming a director
subsequent to the date hereof whose election was approved by a vote of at least
two-thirds (?) of the directors who were directors at the beginning of the
two-year period shall be deemed to have also been a director at the beginning of
such period; or (viii) the Company sells to a third party all or substantially
all of its assets.
(b) If any of the events described in paragraph (a) of this Section 5,
constituting a Change in Control, have occurred or the Board of Directors
determines that a Change in Control has occurred, Executive shall be entitled to
the benefits provided for in paragraphs (c), (d), and (e) of this Section 5 upon
his termination of employment at any time during the term of this Agreement on
or after the date the Change in Control occurs due to (i) Executive's dismissal,
(ii) Executive's resignation following any demotion, loss of title, office or
significant authority or responsibility, reduction in annual compensation or
benefits or relocation of his principal place of employment by more than
twenty-five (25) miles from its location immediately prior to the Change in
Control, or (iii) Executive's resignation for any reason within ninety (90) days
of the effective date of a Change in Control, unless Executive's termination is
for Just Cause as defined in Section 7 of this Agreement; provided, however,
that such benefits shall be reduced by any payments made under Section 4 of this
Agreement.
(c) Upon the occurrence of a Change in Control followed by Executive's
termination of employment, as provided for in paragraph (b) of this Section 5,
the Bank shall pay Executive, or
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in the event of his subsequent death, his beneficiary or beneficiaries, or his
estate, as the case may be, as severance pay or liquidated damages, or both, the
greater of the payments and benefits due for the remaining term of the
Agreement, pursuant to the provisions of Section 4 of this agreement, or three
(3) times the sum of the following items:
(i) the average of any taxable income included by the Bank or the
Company on Executive's Form W-2 or reflected on a Form 1099 provided by
the Bank or the Company to Executive, excluding: A) income attributable
to Executive's exercise of a non-statutory stock option; B) income
related to Executive's disqualifying disposition of an incentive stock
option to acquire Company common stock; or C) income related to the
distribution of benefits under any tax-qualified or non-tax-qualified
retirement or deferred compensation plan or arrangement sponsored by
the Company or the Bank (including the Xxxxxxx Savings Bank, S.L.A.
Amended and Restated Directors' Retirement Plan) during each of the
five (5) most recently completed calendar years preceding the Change in
Control;
(ii) the sum of the average of the value of the deferrals, allocations
or contributions made by Executive or on behalf of Executive by the
Bank, during each of the five (5) most recently completed calendar
years preceding the Change in Control, under the Bank's employee stock
ownership and 401(k) savings plans (or any other tax-qualified defined
contribution retirement plan sponsored by the Bank) and any
supplemental executive retirement plan (or any similar provision of any
similar plan) in which Executive participates as of the Change in
Control. For purposes of this clause (ii), the value of allocations
made to Executive under the employee stock ownership plan or the
supplemental executive retirement plan shall be valued by reference to
the fair market value of Company common stock as of the date of
allocation; and
At the election of Executive, which election is to be made within thirty (30)
days in advance of the Date of Termination on or following a Change in Control,
such payment may be made in a lump sum (without discount for early payment) on
or immediately following the Date of Termination (which may be the date a Change
in Control occurs) or paid in equal monthly installments during the thirty-six
(36) months following Executive's termination. In the event that no election is
made, payment to Executive will be made on a monthly basis during the thirty-six
(36) months following Executive's termination.
(d) Upon the occurrence of a Change in Control and Executive's termination of
employment in connection therewith, to the extent that the Company or the Bank
continues to offer any life, medical, health, disability or dental insurance
plan or arrangement in which Executive or his dependents participated
immediately prior to the Change in Control (each being a "Welfare Plan"),
Executive and his covered dependents shall continue participating in such
Welfare Plans, subject to the same premium contributions on the part of
Executive as were required immediately prior to the Change in Control, until the
earlier of (i) Executive's death; (ii) his employment by another employer other
than one of which he is the majority owner; or (iii) the expiration of
thirty-six (36) months. If the Company or the Bank does not offer the Welfare
Plans at any time after the Change in Control, the Company shall provide
Executive with a payment equal to the
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premiums for such benefits for the period which runs until the earlier of (i)
his death; (ii) his employment by another employer other than one of which he is
the majority owner; or (iii) the expiration of 36 months.
(e) The use or provision of any membership, license, automobile use or other
perquisites shall be continued during the remaining term of the Agreement on the
same financial terms and obligations as were in place immediately prior to the
Change in Control. To the extent that any item referred to in this paragraph
will, at the end of the term of this Agreement, no longer be available to
Executive, Executive will have the option to purchase all rights then held by
the Company or the Bank to such item for a price equal to the then fair market
value of the item.
(f) In the event that Executive is receiving monthly payments pursuant to
Section 5(c) hereof, on an annual basis, thereafter, between the dates of
January 1 and January 31 of each year, Executive shall elect whether the balance
of the amount payable under the Agreement at that time shall be paid in a lump
sum or on a pro rata basis pursuant to such section. Such election shall be
irrevocable for the year for which such election is made by Executive.
6. CHANGE IN CONTROL RELATED PROVISIONS.
Notwithstanding the provisions of Section 5, in no event shall the aggregate
payments or benefits to be made or afforded to Executive under said paragraphs
(the "Termination Benefits") constitute an "excess parachute payment" under
Section 280G of the Code or any successor thereto, and in order to avoid such a
result, Termination Benefits will be reduced, if necessary, to an amount (the
"Non-Triggering Amount"), the value of which is one dollar ($1.00) less than an
amount equal to three (3) times Executive's "base amount", as determined in
accordance with said Section 280G. The allocation of the reduction required
hereby among the Termination Benefits provided by Section 5 shall be determined
by Executive.
7. TERMINATION FOR JUST CAUSE.
The phrase termination for "Just Cause" shall mean termination because of
Executive's personal dishonesty, incompetence, willful misconduct, any breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule, regulation (other than traffic
violations or similar offenses), final cease and desist order or material breach
of any provision of this Agreement. Notwithstanding the foregoing, Executive
shall not be deemed to have been terminated for Just Cause unless and until
there shall have been delivered to him a Notice of Termination which shall
include a copy of a resolution duly adopted by the affirmative vote of not less
than a simple majority of all of the members of the Board of Directors at a
meeting of the Board of Directors called and held for that purpose, finding that
in the good faith opinion of the Board of Directors, Executive was guilty of
conduct justifying termination for Just Cause and specifying the particulars
thereof in detail. Executive shall not have the right to receive compensation or
other benefits for any period after termination for Just Cause.
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8. NOTICE.
(a) Any purported termination by the Bank or by Executive shall be communicated
by Notice of Termination to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a written notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(b) "Date of Termination" shall mean the date specified in the Notice of
Termination.
9. POST-TERMINATION OBLIGATIONS.
Payments and benefits to Executive under this Agreement shall be subject to
Executive's compliance with Section 10 for one (1) full year after the earlier
of the expiration of this Agreement or termination of Executive's employment
with the Bank. Executive shall, upon reasonable notice, furnish such information
and assistance as may reasonably be required by the Bank in connection with any
litigation to which it or any of its affiliates is, or may become, a party.
10. NON-COMPETITION AND NON-DISCLOSURE.
(a) Upon any termination of Executive's employment pursuant to Section 4 of this
Agreement, Executive agrees not to compete with the Bank or its affiliates for a
period of one (1) year following such termination in any city, town or county in
which Executive's normal business office is located and the Bank or any of its
affiliates has an office or has filed an application for regulatory approval to
establish an office, determined as of the effective date of such termination,
except as agreed to pursuant to a resolution duly adopted by the Board of
Directors. Executive agrees that during such period and within said cities,
towns and counties, Executive shall not work for or advise, consult or otherwise
serve with, directly or indirectly, any entity whose business materially
competes with the depository, lending or other business activities of the Bank
or its affiliates. The parties hereto, recognizing that irreparable injury will
result to the Bank or its affiliates, its business and property in the event of
Executive's breach of this Subsection 10(a), agree that in the event of any such
breach by Executive, the Bank or its affiliates will be entitled, in addition to
any other remedies and damages available, to an injunction to restrain the
violation hereof by Executive, Executive's partners, agents, servants, employees
and all persons acting for or under the direction of Executive. Executive
represents and admits that in the event of the termination of his employment
pursuant to Section 4 of this Agreement, Executive's experience and capabilities
are such that Executive can obtain employment in a business engaged in other
lines and/or of a different nature than the Bank or its affiliates, and that the
enforcement of a remedy by way of injunction will not prevent Executive from
earning a livelihood. Nothing herein will be construed as prohibiting the Bank
or its affiliates from pursuing any other remedies available to the Bank or its
affiliates for such breach or threatened breach, including the recovery of
damages from Executive.
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(b) Executive recognizes and acknowledges that his knowledge of the business
activities and plans for business activities of the Bank and its affiliates, as
it may exist from time to time, is a valuable, special and unique asset of the
business of the Bank and its affiliates. Executive will not, during or after the
term of his employment, disclose any knowledge of the past, present, planned or
considered business activities of the Bank and its affiliates thereof to any
person, firm, corporation or other entity for any reason or purpose whatsoever
unless expressly authorized by the Board of Directors or required by law.
Notwithstanding the foregoing, Executive may disclose any knowledge of banking,
financial and/or economic principles, concepts or ideas which are not solely and
exclusively derived from the business plans and activities of the Bank or its
affiliates. In the event of a breach or threatened breach by Executive of the
provisions of this Section 10(b), the Bank will be entitled to an injunction
restraining Executive from disclosing, in whole or in part, knowledge of the
past, present, planned or considered business activities of the Bank or its
affiliates or from rendering any services to any person, firm, corporation or
other entity to whom such knowledge, in whole or in part, has been disclosed or
is threatened to be disclosed. Nothing herein will be construed as prohibiting
the Bank from pursuing any other remedies available to the Bank for such breach
or threatened breach, including the recovery of damages from Executive.
11. DEATH AND DISABILITY.
(a) DEATH. Notwithstanding any other provision of this Agreement to the
contrary, in the event of Executive's death during the term of this Agreement,
the Bank shall immediately pay his estate any salary and bonus accrued but
unpaid as of the date of his death, and, for a period of six (6) months after
Executive's death, the Bank shall continue to provide his dependents medical
insurance benefits existing on the date of his death and shall pay Executive's
designated beneficiary all compensation that would otherwise be payable to him
pursuant to Section 3(a) of this Agreement. This provision shall not negate any
rights Executive or his beneficiaries may have to death benefits under any
employee benefit plan of the Bank or the Company.
(b) DISABILITY.
(i) The Bank or Executive may terminate Executive's employment after
having established Executive's Disability. For purposes of this agreement,
"Disability" means a physical or mental infirmity that impairs Executive's
ability to substantially perform his duties under this Agreement and that
results in the Executive becoming eligible for long-term disability benefits
under the Bank's or the Company's long-term disability plan (or, if the Bank or
the Company has no such plan in effect, that impairs Executive's ability to
substantially perform his duties under this Agreement for a period of one
hundred eighty (180) consecutive days). The Board of Directors shall determine
whether or not Executive is and continues to be permanently disabled for
purposes of this Agreement in good faith, based upon competent medical advice
and other factors that they reasonably believe to be relevant. As a condition to
any benefits, the Board of Directors may require Executive to submit to such
physical or mental evaluations and tests as it deems reasonably appropriate.
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(ii) In the event of Disability, Executive's obligation to perform
services under this Agreement will terminate. In the event of such termination,
Executive shall continue to receive A) one hundred percent (100%) of his monthly
Base Salary (at the annual rate in effect on the Date of Termination) through
the one hundred eightieth (180th) day following the Date of Termination by
reason of Disability and B) sixty percent (60%) of his monthly base salary from
the one hundred eighty-first (181st) day following termination through the
earlier of the date of his death or the date he attains age 70. Such payments
shall be reduced by the amount of any short- or long-term disability benefits
payable to Executive under any disability program sponsored by the Bank or the
Company. In addition, during any period of Executive's Disability, Executive and
his dependents shall, to the greatest extent possible, continue to be covered
under all benefit plans (including, without limitation, retirement plans and
medical, dental and life insurance plans) of the Bank or the Company in which
Executive participated prior to the occurrence of Executive's Disability, on the
same terms as if Executive were actively employed by the Bank.
12. SOURCE OF PAYMENTS.
(a) All payments provided for in this Agreement shall be timely paid in cash or
check from the general funds of the Bank. The Company, however, unconditionally
guarantees payment and provision of all amounts and benefits due hereunder to
Executive and, if such amounts and benefits due from the Bank are not timely
paid or provided by the Bank, such amounts and benefits shall be paid or
provided by the Company.
(b) Notwithstanding any provision herein to the contrary, to the extent that
payments and benefits, as provided by this Agreement, are paid to or received by
Executive under the Employment Agreement in effect between Executive and the
Company (the "Company Agreement"), such compensation payments and benefits paid
by the Company will be subtracted from any amount due simultaneously to
Executive under similar provisions of this Agreement. Payments pursuant to this
Agreement and the Company Agreement shall be allocated in proportion to the
level of activity and the time expended on such activities by Executive as
determined by the Company and the Bank.
13. EFFECT OF PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
This Agreement contains the entire understanding between the parties hereto and
supersedes any prior employment or change in control agreement between the Bank
or any predecessor of the Bank and Executive, except that this Agreement shall
not affect or operate to reduce any benefit or compensation inuring to Executive
of a kind elsewhere provided. No provision of this Agreement shall be
interpreted to mean that Executive is subject to receiving fewer benefits than
those available to him without reference to this Agreement.
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14. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this Agreement
shall be subject to anticipation, commutation, alienation, sale, assignment,
encumbrance, charge, pledge or hypothecation, or to execution, attachment, levy
or similar process or assignment by operation of law, and any attempt, voluntary
or involuntary, to affect any such action shall be null, void and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive, the Bank, the Company and their respective successors and assigns.
15. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument in
writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been waived,
nor shall there be any estoppel against the enforcement of any provision of this
Agreement, except by written instrument of the party charged with such waiver or
estoppel. No such written waiver shall be deemed a continuing waiver unless
specifically stated therein, and each such waiver shall operate only as to the
specific term or condition waived and shall not constitute a waiver of such term
or condition for the future as to any act other than that specifically waived.
16. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any remaining part of such provision not held so invalid,
and each such other provision and part thereof shall to the full extent
consistent with law continue in full force and effect.
17. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
18. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New Jersey without
regard to principles of conflicts of law of that State.
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19. ARBITRATION.
Any dispute or controversy arising under or in connection with this Agreement
shall be settled exclusively by arbitration, conducted before a panel of three
(3) arbitrators sitting in a location selected by Executive within fifty (50)
miles from the location of the Bank, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that
Executive shall be entitled to seek specific performance of his right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
In the event any dispute or controversy arising under or in connection with
Executive's termination is resolved in favor of Executive, whether by judgment,
arbitration or settlement, Executive shall be entitled to the payment of all
back-pay, including salary, bonuses and any other cash compensation, fringe
benefits and any compensation and benefits due Executive under this Agreement.
20. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by Executive pursuant to any dispute
or question of interpretation relating to this Agreement shall be paid or
reimbursed by the Bank only if Executive is successful pursuant to a legal
judgment, arbitration or settlement.
21. INDEMNIFICATION.
(a) The Bank shall provide Executive (including his heirs, executors and
administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense and shall indemnify Executive (and his
heirs, executors and administrators) to the fullest extent permitted under
applicable law against all expenses and liabilities reasonably incurred by him
in connection with or arising out of any action, suit or proceeding in which he
may be involved by reason of his having been a director or officer of the Bank
(whether or not he continues to be a director or officer at the time of
incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgments, court costs and attorneys' fees and
the costs of reasonable settlements.
22. SUCCESSORS TO THE BANK AND THE COMPANY.
The Bank and the Company shall require any successor or assignee, whether direct
or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all of the business or assets of the Bank or the Company,
expressly and unconditionally to assume and agree to perform the Bank's and the
Company's obligations under this Agreement, in the same manner and to the same
extent that the Bank and the Company would be required to perform if no such
succession or assignment had taken place.
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23. REQUIRED PROVISIONS.
(a) The Bank may terminate Executive's employment at any time, but any
termination by the Bank, other than termination for Just Cause, shall not
prejudice Executive's right to receive compensation or other benefits under this
Agreement. Executive shall not have the right to receive compensation or other
benefits for any period after termination for Just Cause as defined in Section 7
of this Agreement.
(b) If Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
ss.1818(e)(3) or (g)(1); the Bank's obligations under this contract shall be
suspended as of the date of service, unless stayed by appropriate proceedings.
If the charges in the notice are dismissed, the Bank may in its discretion: (i)
pay Executive all or part of the compensation withheld while their contract
obligations were suspended; and (ii) reinstate (in whole or in part) any of the
obligations which were suspended.
(c) If Executive is removed and/or permanently prohibited from participating in
the conduct of the Bank's affairs by an order issued under Section 8(e)(4) or
8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. ss.1818(e)(4) or (g)(1),
all obligations of the Bank under this contract shall terminate as of the
effective date of the order, but vested rights of the contracting parties shall
not be affected.
(d) If the Bank is in default as defined in Section 3(x)(1) of the Federal
Deposit Insurance Act, 12 U.S.C. ss.1813(x)(1), all obligations of the Bank
under this contract shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the contracting parties.
(e) All obligations of the Bank under this contract shall be terminated, except
to the extent it is determined that continuation of the contract is necessary
for the continued operation of the Bank: (i) by the Director of the OTS (or his
designee), the FDIC or the Resolution Trust Corporation, at the time the FDIC
enters into an agreement to provide assistance to or on behalf of the Bank under
the authority contained in Section 13(c) of the Federal Deposit Insurance Act,
12 U.S.C. ss.1823(c); or (ii) by the Director of the OTS (or his designee) at
the time the Director (or his designee) approves a supervisory merger to resolve
problems related to the operations of the Bank, or when the Bank is determined
by the Director to be in an unsafe or unsound condition. Any rights of the
parties that have already vested, however, shall not be affected by such action.
(f) Any payments made to Executive pursuant to this Agreement, or otherwise, are
subject to and conditioned upon compliance with 12 U.S.C. ss.1828(k) and 12
C.F.R. ss.545.121 and any rules and regulations promulgated thereunder.
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SIGNATURES
IN WITNESS WHEREOF, Xxxxxxx Savings Bank, S.L.A. and Xxxxxxx Savings Bancorp,
Inc. have caused this Agreement to be executed and the Company seal to be
affixed hereunto by their duly authorized officers and directors, and Executive
has signed this Agreement, on the 17th day of March, 2004.
ATTEST: XXXXXXX SAVINGS BANK, S.L.A.
/s/ Xxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxxxx, Xx.
------------------------------------ ----------------------------------
Corporate Secretary For the Entire Board of Directors
ATTEST: XXXXXXX SAVINGS BANCORP, INC.
/s/ Xxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxxxx, Xx.
------------------------------------ ---------------------------------
Corporate Secretary For the Entire Board of Directors
[SEAL]
WITNESS: EXECUTIVE
/s/ Xxxxxx Xxxxxx /s/ Xxxx X. Xxxxxxxxx, Xx.
------------------------------------ -------------------------------------
Corporate Secretary Xxxx X. Xxxxxxxxx, Xx.
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