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Exhibit 10.3
AMENDED AND RESTATED
CLIFTON SAVINGS BANCORP, INC.
EMPLOYMENT AGREEMENT
This AGREEMENT ("Agreement") as amended and restated, is hereby entered
into as of December 17, 2008, by and between XXXXXXX SAVINGS BANCORP, INC. (the
"Company"), a federally-chartered corporation and the holding company for
XXXXXXX SAVINGS BANK, with its principal offices at 0000 Xxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxxxx 00000, and XXXXXX XXXXXX ("Executive"). Any reference to the
"Bank" in this Agreement shall mean Clifton Savings Bank, or any successor to
Xxxxxxx Savings Bank.
WHEREAS, the Company and Executive entered into an employment agreement as
of March 17, 2004; and
WHEREAS, the Company 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 Company desire to
enter into an amended and restated 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 and to bring the Agreement into
compliance with Section 409A of the Internal Revenue Code of 1986, as amended
(the "Code"), and the regulations and guidance issued with respect to Section
409A of the Code.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is hereby agreed as follows:
1. POSITION AND RESPONSIBILITIES.
(a) During the period of Executive's employment under this Agreement,
Executive agrees to serve as President and Corporate Secretary of the Company.
Executive shall have responsibility for the general management and control of
the business and affairs of the Company and its affiliates and shall perform all
duties and shall have all powers which are commonly incident to the offices of
President and Corporate Secretary or which, consistent with those offices, are
delegated to him by the Board of Directors of the Company (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 Company and its affiliates, as
well as participation in community, professional and civic organizations;
provided, however, that Executive may serve, or continue to serve, on the boards
of directors of, and hold any other offices or positions in, companies or
organizations listed by Executive on his annual conflict of interest reporting.
(c) The Company will furnish Executive with the working facilities and
staff customary for executive officers with the titles 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 Company.
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2. TERM OF EMPLOYMENT.
(a) The term of this Agreement, as amended and restated, shall be (i) the
initial term, consisting of the period commencing on the date of this Agreement,
as amended and restated (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 Effective Date and on each day thereafter, the term
under this Agreement shall be renewed automatically for an additional one (1)
day period beyond the then effective expiration date without action by any
party, provided that neither the Company, on the one hand, nor Executive, on the
other, shall have given at least sixty (60) days' written notice of its or his
desire that the term not be renewed. In the case such notice is given by one
party to the other, the term of this Agreement shall become fixed and shall end
on the third anniversary of the date of written notice.
(c) Notwithstanding anything contained in this Agreement to the contrary,
either Executive or the Company may terminate Executive's employment with the
Company 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 Company agrees to pay Executive during the term of
this Agreement a base salary at the rate of $200,850 per annum, payable in
accordance with the Company's customary payroll practices. The Board of
Directors of the Company 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 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 Company 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
Company or 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 Company or the Bank in which he participated or was eligible
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to participate as of the Effective Date. Executive shall also be entitled to
participate in any employee benefits or perquisites the Company or the Bank
offers to full-time employees or executive management in the future. The Company
or 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, group life
insurance, medical and other health and welfare coverage that are made available
by the Company or 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 Company 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 Company, upon any event
constituting "Good Reason." For purposes of this Agreement, "Good Reason" means
shall mean the occurrence of any of the following events without the Employee's
consent:
(i) The assignment to Executive of duties that constitute a material
diminution of his authority, duties, or responsibilities (including reporting
requirements);
(ii) A material diminution in Executive's Base Salary;
(iii) Relocation of Executive to a location outside a radius of 25
miles of the Company's Clifton, New Jersey office; or
(iv) Any other action or inaction by the Company that constitutes a
material breach of this Agreement;
provided, that within ninety (90) days after the initial existence of such
event, the Company shall be given notice and an opportunity, not less than
thirty (30) days, to effectuate a cure for such asserted "Good Reason" by
Executive. Executive's resignation hereunder for Good Reason shall not occur
later than one hundred fifty (150) days following the initial date on which the
event Executive claims constitutes Good Reason occurred.
(b) Upon Executive's termination of employment in accordance with
paragraph (a) of this Section 4, on the Date of Termination, as defined in
Section 8 of this Agreement, the Company 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 (incentive compensation) 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
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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. The Company shall pay the aggregate sum of these amounts to
Executive in a single lump sum payment (without any mitigation) no later than
ten (10) business days following Executive's termination of employment.
(c) In addition to the payments provided for in paragraph (b) of this
Section 4, upon Executive's separation from service 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 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.
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 2/3 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
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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 event of Good Reason (as defined in
Section 4(a) of this Agreement); 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 payment
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 Company shall pay Executive, or in the event of his subsequent death, his
beneficiary or beneficiaries, or his estate, as the case may be, as severance
pay or liquidated damages, or both, 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 the Executive's Base Salary (as defined in
Section 3(a) of the Agreement), at the highest rate in effect during each of the
five (5) most recently completed calendar years preceding the Change in Control;
(ii) the average of the cash incentive compensation or bonus paid to
Executive, or accrued on Executive's behalf, with respect to each of the five
(5) most recently completed calendar years preceding the Change in Control;
(iii) the average of the income realized by Executive during each of
the five (5) most recently completed calendar years preceding the Change in
Control as a result of the vesting of any restricted shares of Company common
stock held by or on behalf of Executive;
(iv) 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 (iv), 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
(v) the average of any other 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; 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 Amended and Restated Directors' Retirement Plan); or D) income
attributable to payments made in lieu of any benefits payable under a plan
covered by the preceding clause C) of this paragraph, during each of the five
(5) most recently completed calendar years preceding the Change in Control.
The Company shall make the payment to Executive in a single lump sum
no later than ten (10) business days following his termination of employment.
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(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, 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 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 thirty-six (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, at the end of the term of this Agreement, will 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.
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, willful misconduct, any breach of fiduciary
duty involving personal profit, intentional failure to perform stated duties,
incompetence, 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 Company or by Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(b) "Date of Termination" shall mean the date specified in the Notice of
Termination.
9. POST-TERMINATION OBLIGATIONS.
All 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 Company. Executive shall, upon reasonable notice, furnish
such information and assistance to the Company as may reasonably be required by
the Company 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 Company 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
Company 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 Company or its affiliates. The parties hereto, recognizing that irreparable
injury will result to the Company 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 Company 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 Company 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 Company or its affiliates from pursuing any other
remedies available to the Company or its affiliates for such breach or
threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that his knowledge of the
business activities and plans for business activities of the Company and its
affiliates as it may exist from time to time, is a valuable, special and unique
asset of the business of the Company 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 Company and its
affiliates 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 Company or its affiliates. In the event of a breach or
threatened breach by Executive of the provisions of this Section 10(b), the
Company will be entitled to an injunction restraining Executive from disclosing,
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in whole or in part, knowledge of the past, present, planned or considered
business activities of the Company 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 Company from
pursuing any other remedies available to the Company 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 Company 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 Company 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 Company or the Bank.
(b) Disability.
(i) The Company 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 Company's or the Bank's long-term disability plan (or, if the Company
or the Bank 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.
(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 (x) 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 (y) 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 Company or
the Bank. 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 Company or the Bank in
which Executive participated prior to the occurrence of Executive's Disability,
on the same terms as if Executive were actively employed by the Company.
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 Company, subject to Section 12(b).
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(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 Bank (the "Bank Agreement"), such compensation payments and benefits
paid by the Bank will be subtracted from any amount due simultaneously to
Executive under similar provisions of this Agreement. Payments pursuant to this
Agreement and the Bank 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 Company or any predecessor of the Company 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.
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 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.
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18. GOVERNING LAW.
Except to the extent preempted by federal law, the validity,
interpretation, performance, and enforcement of this Agreement shall be governed
by the laws of the State of New Jersey, without regard to principles of
conflicts of law of New Jersey.
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 Company, 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 Company only if Executive is successful pursuant to a legal
judgment, arbitration or settlement.
21. INDEMNIFICATION.
The Company shall provide Executive (including his heirs, executors and
administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense and shall indemnify Executive (and his
heirs, executors and administrators) to the fullest extent permitted under New
Jersey 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 Company
(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. SUCCESSOR TO THE COMPANY.
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 Company's
obligations under this Agreement, in the same manner and to the same extent that
the Company would be required to perform if no such succession or assignment had
taken place.
23. REQUIRED PROVISIONS.
In the event any of the provisions of this Section 23 are in conflict with
the other terms of this Agreement, this Section 23 shall prevail.
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(a) The Company's board of directors may terminate Executive's employment
at any time, but any termination by the Company, other than termination for Just
Cause, shall not prejudice Executive's right to 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 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 Company'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 Company'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 Company 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 Company'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 Company 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 Company 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
Company 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 under this contract shall be terminated, except to the
extent determined that continuation of the contract is necessary for the
continued operation of the Company: (i) by the Director of the OTS (or his
designee), at the time the FDIC enters into an agreement to provide assistance
to or on behalf of the Company 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
Company or when the Company 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 employees pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with 12 U.S.C.
ss.1828(k) and FDIC regulation 12 C.F.R. Part 359, Golden Parachute and
Indemnification Payments.
24. SECTION 409A OF THE CODE.
(a) This Agreement is intended to comply with the requirements of Section
409A of the Code, and specifically, with the "short-term deferral exception"
under Treasury Regulation Section 1.409A-1(b)(4) and the "separation pay
exception" under Treasury Regulation Section 1.409A-1(b)(9)(iii), and shall in
all respects be administered in accordance with Section 409A of the Code. If any
payment or benefit hereunder cannot be provided or made at the time specified
herein without incurring sanctions on Executive under Section 409A of the Code,
then such payment or benefit shall be provided in full at the earliest time
thereafter when such sanctions will not be imposed. For purposes of Section 409A
of the Code, all payments to be made upon a termination of employment under this
Agreement may only be made upon a "separation from service" (within the meaning
of such term under Section 409A of the Code), each payment made under this
Agreement shall be treated as a separate payment, the right to a series of
installment payments under this Agreement (if any) is to be treated as a right
to a series of separate payments, and if a payment is not made by the designated
payment date under this Agreement, the payment shall be made by December 31 of
the calendar year in which the designated date occurs. To the extent that any
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payment provided for hereunder would be subject to additional tax under Section
409A of the Code, or would cause the administration of this Agreement to fail to
satisfy the requirements of Section 409A of the Code, such provision shall be
deemed null and void to the extent permitted by applicable law, and any such
amount shall be payable in accordance with (b) below. In no event shall
Executive, directly or indirectly, designate the calendar year of payment.
(b) If when separation from service occurs Executive is a "specified
employee" within the meaning of Section 409A of the Code, and if the cash
severance payment under Section 4(b) or 5(c), (e) would be considered deferred
compensation under Section 409A of the Code, and, finally, if an exemption from
the six-month delay requirement of Section 409A(a)(2)(B)(i) of the Code is not
available (i.e., the "short-term deferral exception" under Treasury Regulations
Section 1.409A-1(b)(4) or the "separation pay exception" under Treasury Section
1.409A-1(b)(9)(iii)), the Company will make the maximum severance payment
possible in order to comply with an exception from the six month requirement and
make any remaining severance payment under Section 4(b) or 5(c), (e) to
Executive in a single lump sum without interest on the first payroll date that
occurs after the date that is six (6) months after the date on which Executive
separates from service.
(c) If (x) under the terms of the applicable policy or policies for the
insurance or other benefits specified in Section 4(c) or 5(d) it is not possible
to continue coverage for Executive and his dependents, or (y) when a separation
from service occurs Executive is a "specified employee" within the meaning of
Section 409A of the Code, and if any of the continued insurance coverage or
other benefits specified in Section 4(c) or 5(d) would be considered deferred
compensation under Section 409A of the Code, and, finally, if an exemption from
the six-month delay requirement of Section 409A(a)(2)(B)(i) of the Code is not
available for that particular insurance or other benefit, the Company shall pay
to Executive in a single lump sum an amount in cash equal to the present value
of the Company's projected cost to maintain that particular insurance benefit
(and associated income tax gross-up benefit, if applicable) had Executive's
employment not terminated, assuming continued coverage for 36 months. The
lump-sum payment shall be made thirty (30) days after employment termination or,
if Section 24(b) applies, on the first payroll date that occurs after the date
that is six (6) months after the date on which Executive separates from service.
(d) References in this Agreement to Section 409A of the Code include
rules, regulations, and guidance of general application issued by the Department
of the Treasury under Internal Revenue Section 409A of the Code.
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SIGNATURES
IN WITNESS WHEREOF, Xxxxxxx Savings Bancorp, Inc. has caused this
Agreement to be executed and its seal to be affixed hereunto by its duly
authorized officer and its directors, and Executive has signed this Agreement,
on December 17, 2008.
ATTEST: XXXXXXX SAVINGS BANCORP, INC.
/s/ Xxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxxxx, Xx.
------------------------ ---------------------------------
For the Entire Board of Directors
[SEAL]
WITNESS: EXECUTIVE
/s/ Xxxxxx Xxxxxx /s/ Xxxxxx Xxxxxx
------------------------ ---------------------------------
Xxxxxx Xxxxxx
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