EXHIBIT 10.2(a)
Amended and Restated Employment Agreement between Flushing Savings Bank, FSB
and Certain Officers.
FLUSHING SAVINGS BANK, FSB
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement")
is made and entered into as of the 18th day of July, 2000, by and between
Flushing Savings Bank, FSB, a savings bank organized and existing under Federal
law and having its executive offices at ▇▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (the "Bank"), and _______________________, residing at
________________________ ("Officer").
W I T N E S S E T H:
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WHEREAS, the Bank and the Officer are parties to an Employment
Agreement dated as of July 20, 1999; and
WHEREAS, the Bank considers the availability of the Officer's
services to be important to the successful management and conduct of the Bank's
business and desires to secure for itself the continued availability of his
services; and
WHEREAS, for purposes of securing for the Bank the Officer's
continued services, the Board of Directors of the Bank ("Board") has authorized
the proper officers of the Bank to enter into an amended and restated employment
agreement with the Officer on the terms and conditions set forth herein; and
WHEREAS, the Officer is willing to make his services
available to the Bank on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and obligations hereinafter set forth, the Bank and the Officer
hereby agree as follows:
Section 1. Employment.
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The Bank hereby agrees to employ the Officer, and the Officer
hereby agrees to accept such employment, during the period and upon the terms
and conditions set forth in this Agreement.
Section 2. Employment Period.
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(a) Except as otherwise provided in this Agreement to the
contrary, the terms and conditions of this Agreement shall be and remain in
effect during the period of employment ("Employment Period") established under
this section 2. The Employment Period under this Amended and Restated Employment
Agreement shall be for a term commencing on July 18, 2000 and ending on November
21, 2002, plus such extensions as are provided pursuant to section 2(b) of this
Agreement.
(b) On or as of July 1, 2001, and on or as of each July 1
thereafter, the Employment Period shall be extended for one additional year if
and only if the Board shall have authorized the extension of the Employment
Period prior to July 1 of such year and the Officer shall not have notified the
Bank prior to July 1 of such year that the Employment Period shall not be so
extended. If the Board shall not have authorized the extension of the Employment
Period prior to July 1 of any such year, or if the Officer shall have given
notice of nonextension to the Bank prior to July 1 of such year, then the
Employment Period shall not be extended pursuant to this section 2(b) at any
time thereafter and shall end on the last day of its term as then in effect.
(c) Upon the termination of the Officer's employment with the
Bank, the extensions provided pursuant to section 2(b) shall cease (if such
extensions have not previously ceased).
Section 3. Title and Duties.
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On the date on which the Employment Period commences, the
Officer shall hold the position of Senior Vice President of the Bank. During the
Employment Period, the Officer shall: (a) devote his full business time and
attention (other than during weekends, holidays, vacation periods and periods of
illness or approved leaves of absence) to the business and affairs of the Bank
and use his best efforts to advance the Bank's interests, including reasonable
periods of service as an officer and/or board member of trade associations,their
related entities and charitable organizations; and (b) perform such reasonable
additional duties as may be assigned to him by or under the authority of the
Board. The Officer shall have such authority as is necessary or appropriate to
carry out his duties under this Agreement.
Section 4. Compensation.
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In consideration for services rendered by the Officer under
this Agreement:
(a) The Bank shall pay to the Officer a salary at an annual
rate equal to the greater of (i) $________ or (ii) such higher annual rate as
may be prescribed by or under the authority of the Board (the "Current Salary").
The Officer will undergo an annual salary and performance review on or about
June 30 of each year commencing in 2001. The Current Salary payable under this
section 4 shall be paid in approximately equal installments in accordance with
the Bank's customary payroll practices.
(b) The Officer shall be eligible to participate in any bonus
plan maintained by the Bank for its officers and employees.
Section 5. Employee Benefits and Other Compensation.
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(a) Except as otherwise provided in this Agreement, the
Officer shall, during the Employment Period, be treated as an employee of the
Bank and be entitled to participate in and receive benefits under the Bank's
employee benefit plans and programs, as well as such other compensation plans or
programs (whether or not employee benefit plans or programs), as the Bank may
maintain from time to time, in accordance with the terms and conditions of such
employee benefit plans and programs and compensation plans and programs and with
the Bank's customary practices.
(b) The Bank shall provide the Officer with a suitable
automobile for use in the performance of the Officer's duties hereunder and
shall reimburse the Officer for all expenses incurred in connection therewith.
(c) The Officer shall be entitled, without loss of pay, to
vacation time in accordance with the policies periodically established by the
Board for senior management officials of the Bank, which shall in no event be
less than three weeks in each calendar year. Except as provided in section 7(b),
the Officer shall not be entitled to receive any additional compensation from
the Bank on account of his failure to take a vacation, nor shall he be entitled
to accumulate unused vacation from one calendar year to the next except to the
extent authorized by the Board for senior management officials of the Bank.
Section 6. Working Facilities and Expenses.
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The Officer's principal place of employment shall be at the
offices of the Bank in Queens County, New York or at such other location upon
which the Bank and the Officer may mutually agree. The Bank shall provide the
Officer, at his principal place of employment, with a private office,
stenographic services and other support services and facilities consistent with
his position with the Bank and necessary or appropriate in connection with the
performance of his duties under this Agreement. The Bank shall reimburse the
Officer for his ordinary and necessary business expenses, including, without
limitation, travel and entertainment expenses, incurred in connection with the
performance of his duties under this Agreement, upon presentation to the Bank of
an itemized account of such expenses in such form as the Bank may reasonably
require.
Section 7. Termination with Bank Liability.
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(a) In the event that the Officer's employment with the Bank
shall terminate during the Employment Period on account of:
(i) the Officer's voluntary resignation from
employment with the Bank within one year following an event
that constitutes "Good Reason," which is defined as:
(A) the failure of the Bank to elect or to
reelect the Officer to serve as its Senior Vice
President or such other position as the Officer
consents to hold;
(B) the failure of the Bank to cure a
material adverse change made by the Bank in the
Officer's functions, duties, or responsibilities in
his position with the Bank within sixty days
following written notice thereof from the Officer;
(C) the failure of the Bank to maintain the
Officer's principal place of employment at its
offices in Queens County, New York or at such other
location upon which the Bank and the Officer may
mutually agree;
(D) the failure of the Board to extend the
Employment Period within the times provided in
section 2(b); provided, however, that such failure
shall not constitute Good Reason until the earlier of
30 days after any determination by the Board that the
Employment Period shall not be so extended or August
1 of such year;
(E) the failure of the Bank to cure a
material breach of this Agreement by the Bank within
sixty days following written notice thereof from the
Officer; or
(F) after a Change of Control (as defined in
Section 10), the failure of any successor company to
the Bank to assume this Agreement.
(ii) the discharge of the Officer by the Bank for any
reason other than (A) for "Cause" as defined in section 8(b)
or (B) the Officer's death or "Disability" as defined in
section 9(a); or
(iii) the Officer's voluntary resignation from
employment with the Bank for any reason within the sixty-day
period commencing six months following a Change of Control as
defined in section 10;
then the Bank shall provide the benefits and pay to the Officer as liquidated
damages the amounts provided for under section 7(b).
(b) Upon the termination of the Officer's employment with the
Bank under circumstances described in section 7(a), the Bank shall pay and
provide to the Officer:
(i) his earned but unpaid Current Salary as of the
date of termination, plus an amount representing any accrued
but unpaid vacation time and floating holidays;
(ii) if the Officer's termination of employment
occurs after a Change of Control, a pro rata portion of his
bonus for the year of termination, determined by multiplying
the amount of the bonus earned by the Officer for the
preceding calendar year by the number of full months of
employment during the year of termination, and dividing by 12.
If the Officer's termination of employment occurs prior to a
Change of Control, the Compensation Committee of the Bank may,
in its sole discretion, award the Officer a bonus for the year
of termination, in an amount determined by such Committee
either at the time of termination of employment or at the time
bonuses to active employees are awarded, which the Bank shall
pay to the Officer promptly after it has been awarded;
(iii) the benefits, if any, to which he is entitled
as a former employee under the Bank's employee benefit plans
and programs and compensation plans and programs;
(iv) continued health and welfare benefits (including
group life, disability, medical and dental benefits), in
addition to that provided pursuant to section 7(b)(iii), to
the extent necessary to provide coverage for the Officer for a
period of 24 months ("Severance Period"). Such benefits shall
be provided through the purchase of insurance, and shall be
equivalent to the health and welfare benefits (including
cost-sharing percentages) provided to active employees of the
Bank (or any successor thereof) as from time to time in effect
during the Severance Period. Where the amount of such benefits
is based on salary, they shall be provided to the Officer
based on the highest annual rate of Current Salary achieved by
the Officer during the Employment Period. If the Officer had
dependent coverage in effect at the time of his termination of
employment, he shall have the right to elect to continue such
dependent coverage for the Severance Period. The benefits to
be provided under this paragraph (iv) shall cease to the
extent that substantially equivalent benefits are provided to
the Officer (and/or his dependents) by a subsequent employer
of the Officer;
(v) if the Officer is age 55 or older at the end of
the Severance Period, he shall be entitled to elect coverage
for himself and his dependents under the Bank's retiree
medical and retiree life insurance programs. Such coverage, if
elected, shall commence upon the expiration of the Severance
Period, without regard to whether the Officer commences his
pension benefit at such time, and shall continue for the life
of each of the Officer and his spouse and for so long as any
of his other covered dependents remain eligible. The coverage
and cost-sharing percentage of the Officer and his dependents
under such programs shall be those in effect under such
programs on the date of the Officer's termination of
employment with the Bank, and shall not be adversely modified
without the Officer's written consent; and
(vi) within thirty days following his termination of
employment with the Bank, a cash lump sum payment in an amount
equal to the Current Salary and bonus that the Officer would
have earned pursuant to sections 4(a) and 4(b), respectively,
if he had continued working for the Bank for the Severance
Period (basing such bonus on the highest bonus, if any, paid
to the Officer by the Bank under section 4(b) within the
three-year period prior to the date of termination), provided,
however, that the lump sum payable pursuant to this clause
(vi) of this section 7(b) shall not exceed three times the
Officer's average annual compensation based on the most recent
five taxable years (or such lesser number of taxable years the
Officer was employed by the Bank).
The lump sum payable pursuant to clause (vi) of this section 7(b) is to be paid
in lieu of all other payments of Current Salary and bonus provided for under
this Agreement relating to the period following any such termination and shall
be payable without proof of damages and without regard to the Officer's efforts,
if any, to mitigate damages. The Bank and the Officer hereby stipulate that the
damages which may be incurred by the Officer following any such termination of
employment are not capable of accurate measurement as of the date first above
written and that the payments and benefits provided under this section 7(b) are
reasonable under the circumstances as a combination of liquidated damages and
severance benefits.
Section 8. Termination for Cause or Voluntary
Resignation Without Good Reason.
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(a) In the event that the Officer's employment with the Bank
shall terminate during the Employment Period on account of:
(i) the discharge of the Officer by the Bank for
Cause; or
(ii) the Officer's voluntary resignation from
employment with the Bank for reasons other than those
constituting a Good Reason;
then the Bank shall have no further obligations under this Agreement, other than
(A) the payment to the Officer of his earned but unpaid Current Salary as of the
date of the termination of his employment; and (B) the provision of such other
benefits, if any, to which he is entitled as a former employee under the Bank's
employee benefit plans and programs and compensation plans and programs.
(b) For purposes of this Agreement, the term "Cause" means the
Officer's personal dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, willful violation of any law, rule, or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order, or material
breach of any provision of this Agreement.
Section 9. Disability or Death.
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(a) The Officer's employment with the Bank may be terminated
for "Disability" if the Officer shall become disabled or incapacitated during
the Employment Period to the extent that he has been unable to perform the
essential functions of his employment for 270 consecutive days, subject to the
Officer's right to receive from the Bank following his termination due to
Disability the following percentages of his Current Salary under section 4 of
this Agreement: 100% for the first six months, 75% for the next six months and
60% thereafter for the remaining term of the Employment Period (less in each
case any benefits which may be payable to the Officer under the provisions of
disability insurance coverage in effect for Bank employees).
(b) In the event that the Officer's employment with the Bank
shall terminate during the Employment Period on account of death, the Bank shall
promptly pay the Officer's designated beneficiaries or, failing any designation,
his estate a cash lump sum payment equal to his earned but unpaid Current
Salary.
(c) In the event of the Officer's termination of employment on
account of death or Disability prior to a Change of Control, the Compensation
Committee of the Bank may, in its sole discretion, award the Officer a bonus for
the year of termination, in an amount determined by such Committee either at the
time of termination of employment or at the time bonuses to active employees are
awarded, in which case the Bank shall pay such bonus to the Officer or, in the
event of death, his designated beneficiaries or estate, as the case may be,
promptly after it is awarded. In the event of the Officer's termination of
employment on account of death or Disability after a Change of Control, the Bank
shall promptly pay the Officer or, in the event of death, his designated
beneficiaries or estate, as the case may be, a pro rata portion of his bonus for
the year of termination, determined by multiplying the amount of the bonus
earned by the Officer for the preceding calendar year by the number of full
months of employment during the year of termination, and dividing by 12.
Section 10. Change of Control.
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For purposes of this Agreement, the term "Change of Control"
means:
(a) the acquisition of all or substantially all of the assets
of the Bank or Flushing Financial Corporation ("Holding Company") by any person
or entity, or by any persons or entities acting in concert;
(b) the occurrence of any event if, immediately following such
event, a majority of the members of the Board of Directors of the Bank or the
Holding Company or of any successor corporation shall consist of persons other
than Current Members (for these purposes, a "Current Member" shall mean any
member of the Board of Directors of the Bank or the Holding Company as of July
18, 2000 and any successor of a Current Member whose nomination or election has
been approved by a majority of the Current Members then on the Board of
Directors);
(c) the acquisition of beneficial ownership, directly or
indirectly (as provided in Rule 13d-3 of the Securities Exchange Act of 1934
(the "Act"), or any successor rule), of 25% or more of the total combined voting
power of all classes of stock of the Bank or the Holding Company by any person
or group deemed a person under Section 13(d)(3) of the Act; or
(d) approval by the stockholders of the Bank or the Holding
Company of an agreement providing for the merger or consolidation of the Bank or
the Holding Company with another corporation where the stockholders of the Bank
or the Holding Company, immediately prior to the merger or consolidation, would
not beneficially own, directly or indirectly, immediately after the merger or
consolidation, shares entitling such stockholders to 50% or more of the total
combined voting power of all classes of stock of the surviving corporation.
Section 11. No Effect on Employee Benefit
Plans or Compensation Programs.
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Except as expressly provided in this Agreement, the
termination of the Officer's employment during the term of this Agreement or
thereafter, whether by the Bank or by the Officer, shall have no effect on the
rights and obligations of the parties hereto under the Bank's employee benefit
plans or programs or compensation plans or programs (whether or not employee
benefit plans or programs) that the Bank may maintain from time to time.
Section 12. Successors and Assigns.
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This Agreement will inure to the benefit of and be binding
upon the Officer, his legal representatives and estate or intestate
distributees, and the Bank and its successors and assigns, including any
successor by merger or consolidation or a statutory receiver or any other person
or firm or corporation to which all or substantially all of the assets and
business of the Bank may be sold or otherwise transferred.
Section 13. Notices.
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Any communication to a party required or permitted under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the to the other
party:
If to the Officer:
Officer's Name
Officer's Address
If to the Bank:
Flushing Savings Bank, FSB
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▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Secretary of the Bank
Section 14. Severability.
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A determination that any provision of this Agreement is
invalid or unenforceable shall not affect the validity or enforceability of any
other provision hereof.
Section 15. Waiver.
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Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
Section 16. Counterparts.
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This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, and all of which shall constitute one
and the same Agreement.
Section 17. Governing Law.
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This Agreement shall be governed by and construed and enforced
in accordance with (i) the laws of the State of New York, without reference to
conflicts of law principles, and (ii) Federal law, to the extent such law
preempts New York law.
Section 18. Headings.
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The headings of sections in this Agreement are for convenience
of reference only and are not intended to qualify the meaning of any section.
Any reference to a section number shall refer to a section of this Agreement,
unless otherwise stated.
Section 19. Entire Agreement; Modifications.
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This instrument contains the entire agreement of the parties
relating to the subject matter hereof and supersedes in its entirety any and all
prior agreements, understandings or representations relating to the subject
matter hereof. No modifications of this Agreement shall be valid unless made in
writing and signed by the parties hereto.
Section 20. Funding.
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The Bank may elect in its sole discretion to fund all or part
of its obligations to the Officer under this Agreement; provided, however, that
should it elect to do so, all assets acquired by the Bank to fund its
obligations shall be part of the general assets of the Bank and shall be subject
to all claims of the Bank's creditors.
Section 21. Regulatory Action.
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(a) Notwithstanding any other provision of this Agreement to
the contrary, this Section 21 shall apply at all times during the Employment
Period.
(b) If the Officer is suspended and/or temporarily prohibited
from participating in the conduct of the affairs of the Bank by a notice served
under 12 U.S.C. 1818(e)(3) and (g)(1), the Bank's obligations to the Officer
under this Agreement shall be suspended as of the date of such service unless
such service is stayed by appropriate proceedings. If the charges in such notice
are dismissed, the Bank shall (i) pay the Officer all of the compensation
withheld while the Bank's obligations under this Agreement were so suspended,
and (ii) reinstate in whole any of its obligations to the Officer which were
suspended.
(c) If the Officer is removed and/or permanently prohibited
from participating in the conduct of the Bank's affairs by an order issued under
12 U.S.C. 1818(e)(4) or (g)(1), all obligations of the Bank to the Officer under
this Agreement shall terminate as of the effective date of the order, other than
vested rights of the parties accrued as of such effective date, which shall not
be affected.
(d) If the Bank is in default (as defined in section 3(x)(1)
of the Federal Deposit Insurance Act), all obligations of the Bank under this
Agreement shall terminate as of the date of such default, but this Section 21(d)
shall not affect any vested rights of the Officer accrued as of such date of
default.
(e) All obligations of the Bank under this Agreement shall be
terminated, except to the extent it is determined that continuation of the
Agreement is necessary to the continued operation of the Bank, (i) by the
Regional Director of the Office of Thrift Supervision or his or her designee
("Director") at the time the Federal Deposit Insurance Corporation or Resolution
Trust Corporation 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; or (ii) by the Director at the time the Director approves
a supervisory merger to resolve problems related to operation of the Bank or
when the Bank is determined by the Director to be in an unsafe or unsound
condition; provided, however, that this Section 21(e) shall not affect any
vested rights of the Officer accrued as of such date of termination.
(f) Any payments made to the Officer pursuant to this
Agreement or otherwise are subject to and conditioned upon their compliance with
12 U.S.C.ss.1828(k) and any regulations promulgated thereunder.
IN WITNESS WHEREOF, the parties have signed this Agreement as
of the day and year first above written.
FLUSHING SAVINGS BANK, FSB
By: ___________________________________________
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President & C.E.O.
Officer: ______________________________________