EXHIBIT 10.5
NEW YORK COMMUNITY BANCORP, INC.
EMPLOYMENT AGREEMENT
This AGREEMENT ("Agreement") is effective as of March 27, 2001, by and
among New York Community Bancorp, Inc., a corporation organized under the laws
of Delaware (the "Holding Company"), Richmond County Savings Bank, a New York
state chartered savings bank ("Richmond Bank"), Richmond County Financial Corp.,
a corporation organized under the laws of Delaware and the principal holding
company for Richmond Bank ("Richmond"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Executive").
WHEREAS, Executive is currently employed as President and Chief
Operating Officer of Richmond and President and Chief Operating Officer of
Richmond Bank;
WHEREAS, Richmond is entering into an Agreement and Plan of Merger of
even date herewith (the "Merger Agreement") with the Holding Company, pursuant
to which Richmond will merge with and into the Holding Company (the "Merger")
with the Holding Company being the surviving corporation and pursuant to which
Richmond Bank will merge with and into New York Community Bank, a New York state
chartered savings bank which is a wholly owned subsidiary of the Holding Company
(the "Bank"), with the Bank being the surviving bank; and
WHEREAS, Executive and Richmond are parties to an employment agreement
amended and restated as of September 21, 1999, and Executive and Richmond Bank
are parties to an employment agreement dated as of September 21, 1999 (together,
the "Prior Employment Agreements");
WHEREAS, the Holding Company has determined that it is in the best
interests of the Holding Company and its shareholders to provide for the
continuing availability to the Holding Company and the Bank of Executive's
services and expertise following the "Effective Time" as such term is defined in
the Merger Agreement, all on the terms and conditions set forth below;
WHEREAS, Executive is willing to make his services available to the
Holding Company and the Bank, on the terms and subject to the conditions set
forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. POSITION AND RESPONSIBILITIES.
(a) During the period of Executive's employment under this Agreement,
Executive agrees to serve as Senior Executive Vice President and Chief Operating
Officer of the Holding Company and President and Chief Operating Officer of the
Bank. Executive shall render such administrative and management services to the
Holding Company and the Bank as are customarily performed by persons in similar
executive capacities.
(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 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 Holding Company and the Bank, as well as
participation in community, professional and civic organizations; provided,
however, that, with the approval of the Board of Directors of the Holding
Company (the "Board of Directors" or the "Board"), as evidenced by a resolution
of the Board, 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 Board's judgment, will not present any
conflicts of interest with the Holding Company or its subsidiaries, or
materially affect the performance of Executive's duties pursuant to this
Agreement.
2. TERM OF EMPLOYMENT.
(a) The period of Executive's employment under this Agreement shall
continue for a period of three (3) years from the Effective Time. Commencing
with the Effective Time, the term of this Agreement shall extend for one day
each day until such time as the Board or Executive elects not to extend the term
of the Agreement by giving written notice to the other party in accordance with
Section 8 of this Agreement, in which case the term of this Agreement shall
become fixed and shall end on the third anniversary of the date of such written
notice. The Board will review the Agreement and Executive's performance annually
for purposes of determining whether to give notice not to extend the Agreement,
and the results thereof shall be included in the minutes of the Board's meeting.
(b) Notwithstanding anything contained in this Agreement to the contrary,
either Executive or the Holding Company may terminate Executive's employment
with the Holding Company or the Bank at any time during the term of this
Agreement, subject to the terms and conditions of this Agreement.
3. COMPENSATION, BENEFITS AND REIMBURSEMENT.
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(a) Base Salary. The Holding Company shall pay Executive an annual salary
of not less than Executive's annual base salary with Richmond immediately prior
to the Effective Time ("Base Salary"). Executive's Base Salary shall be payable
in accordance with the normal payroll practices of the Holding Company and the
Bank. Whenever used in this Agreement, Base Salary shall include any amounts of
compensation deferred by Executive under any tax-qualified retirement or welfare
benefit plan or any other deferred compensation arrangement maintained by the
Holding Company or the Bank. During the term of this Agreement, the Board of
Directors or a committee appointed by the Board of Directors shall review
Executive's Base Salary at least annually and the Board of Directors or the
committee may increase Executive's Base Salary at any time. Any increase in
Executive's Base Salary shall become a term of this Agreement and shall be the
new "Base Salary" for purposes of this Agreement.
(b) Incentive Compensation. In addition to his Base Salary, Executive
shall be entitled to participate in and shall receive payments under any
incentive compensation bonus program sponsored by the Holding Company or the
Bank. Executive's incentive compensation shall be determined by the Board of
Directors or a committee appointed by the Board of Directors at a level
appropriate for executive officers.
(c) Club Dues. In addition to any other compensation provided for under
this Agreement, the Holding Company shall pay, or cause the Bank to pay,
Executive an amount sufficient, on an after-tax basis, to maintain his
membership at a country club of Executive's choice.
(d) Automobile and Cellular Phone. The Holding Company or the Bank shall
provide Executive with, and Executive shall have the primary use of, an
automobile owned or leased by the Holding Company or the Bank and the Holding
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 Board of Directors may establish from time to time, and
Executive's Form W-2 shall include annually any amount attributable to
Executive's personal use of such automobile. The Holding 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.
(e) Vacation; Holidays; Sick Time. Executive shall be entitled to vacation
in accordance with the standard vacation policies of the Holding Company for
senior executive officers, but in no event less than four weeks vacation during
each year of employment. Executive shall take vacation at a time mutually agreed
upon by the Holding 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 Holding
Company. Executive shall also be entitled to sick leave in accordance with the
policies
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of the Holding Company for senior executive officers.
(f) Other Employee Benefits. In addition to any other compensation or
benefits provided for under this Agreement, Executive shall be entitled to
participate in any employee benefit plans, arrangements and perquisites the
Holding Company or the Bank offers to full-time employees or executive
management in the future. The Holding 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 provided, however, that the
Holding Company may make such changes to such plans, arrangements or perquisites
generally provided on a nondiscriminatory basis to all employees, without
Executive's consent. 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 Holding Company or the Bank at the effective time
of this Agreement or at any time in the future during the term of this Agreement
to its senior executives and key management employees, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements. Nothing paid to Executive under any such plans or arrangements
will be deemed to be in lieu of other compensation to which Executive is
entitled under this Agreement.
(g) Business Expenses. In addition to any other compensation or benefits
provided for under this Agreement, the Holding Company shall pay or reimburse
Executive for all reasonable travel and other reasonable expenses incurred by
Executive in performing his obligations under this Agreement and may provide
such additional compensation in such form and such amounts as the Board may from
time to time determine.
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 Holding Company or the Bank of
Executive's full-time employment with the Holding Company or the Bank for any
reason other than a termination for "Just Cause" (as defined in Section 7 of
this Agreement); or (ii) Executive's resignation from the Holding Company or the
Bank upon any (A) failure to nominate or re-elect Executive as a member of the
Board of Directors of the Holding Company or the Bank or as an executive officer
of the Bank or the Holding Company, (B) material change in Executive's function,
duties, or responsibilities with the Holding
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Company or the Bank, which change would cause Executive's position(s) to become
of lesser responsibility, importance, or scope, (C) relocation of Executive's
principal place of employment by more than 40 miles from the Holding Company's
offices, (D) material reduction in the benefits and perquisites to Executive
from those being provided as of the effective date of this Agreement (except as
provided for under Section 3(f) of this Agreement), (E) liquidation or
dissolution of the Holding Company or the Bank, or (F) material breach of this
Agreement by the Holding Company. Upon the occurrence of any event described in
clauses (A), (B), (C), (D), (E) or (F) above, Executive shall have the right to
terminate his employment under this Agreement by resignation upon not less than
sixty (60) days prior 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 from employment in accordance with
paragraph (a) of this Section 4, on the Date of Termination, as defined in
Section 8 of the Agreement, the Holding Company shall pay Executive, or, in the
event of his death, 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 pursuant to Sections 3(a)
and (b) of this Agreement 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 amount of any benefits received or to be received by Executive or
contributions made or to be made on behalf of Executive pursuant to any employee
benefit plans maintained by the Bank for the remaining term of this Agreement.
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 the
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 Holding
Company or the Bank continues to offer any life, medical, health, disability or
dental insurance plan or arrangement in which Executive participates on the last
day of his employment (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 earliest 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 Holding Company
or the Bank does not offer the Welfare Plans at any time after the Event of
Termination, then the Holding Company or the Bank shall provide Executive with a
payment equal to the premiums for such benefits for the period that runs until
the earliest of (i) his death (ii) his employment by another employer other than
one of which he is the
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majority owner or (iii) the end of the remaining term of this Agreement.
5. CHANGE IN CONTROL.
(a) For purposes of this Agreement, "Change in Control" means the
occurrence of any of the following events:
(1) individuals who, immediately after the Effective Time, constitute
the Board (the "Incumbent Directors") cease for any reason to constitute at
least a majority of the Board, provided that any person becoming a director
subsequent to such time, whose election or nomination for election was
approved by a vote of at least two-thirds of the Incumbent Directors then
on the Board (either by a specific vote or by approval of the proxy
statement of the Holding Company in which such person is named as a nominee
for director, without written objection to such nomination) shall be an
Incumbent Director; provided, however, that no individual initially elected
or nominated as a director of the Holding Company as a result of an actual
or threatened election contest with respect to directors or as a result of
any other actual or threatened solicitation of proxies or consents by or on
behalf of any person other than the Board shall be deemed to be an
Incumbent Director;
(2) any "person" (as such term is defined in Section 3(a)(9) of the
Securities Exchange Act of 1934 (the "Exchange Act") and as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Holding Company representing
25% or more of the combined voting power of the Holding Company's then
outstanding securities eligible to vote for the election of the Board (the
"Holding Company Voting Securities"); provided, however, that the event
described in this paragraph (ii) shall not be deemed to be a Change in
Control by virtue of any of the following acquisitions: (A) by the Holding
Company or any Subsidiary, (B) by any employee benefit plan (or related
trust) sponsored or maintained by the Holding Company or any Subsidiary,
(C) by any underwriter temporarily holding securities pursuant to an
offering of such securities or (D) a transaction (other than one described
in (iii) below) in which Holding Company Voting Securities are acquired
from the Holding Company, if a majority of the Incumbent Directors approve
a resolution providing expressly that the acquisition pursuant to this
clause (D) does not constitute a Change in Control under this paragraph
(ii);
(3) the consummation of a merger, consolidation, statutory share
exchange or similar form of corporate transaction involving the Holding
Company or any of its Subsidiaries that requires the approval of the
Holding Company's stockholders, whether for such transaction or the
issuance of securities in the transaction (a "Business Combination"),
unless immediately following such Business Combination: (A) more
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than 50% of the total voting power of (x) the corporation resulting from
such Business Combination (the "Surviving Corporation"), or (y) if
applicable, the ultimate parent corporation that directly or indirectly has
beneficial ownership of 100% of the voting securities eligible to elect
directors of the Surviving Corporation (the "Parent Corporation"), is
represented by the Holding Company Voting Securities that were outstanding
immediately prior to such Business Combination (or, if applicable, is
represented by shares into which such Holding Company Voting Securities
were converted pursuant to such Business Combination), and such voting
power among (and only among) the holders thereof is in substantially the
same proportion as the voting power of such Holding Company Voting
Securities among the holders thereof immediately prior to the Business
Combination, (B) no person (other than any employee benefit plan (or
related trust) sponsored or maintained by the Surviving Corporation or the
Parent Corporation) is or becomes the beneficial owner, directly or
indirectly, of 25% or more of the total voting power of the outstanding
voting securities eligible to elect directors of the Parent Corporation
(or, if there is no Parent Corporation, the Surviving Corporation) and (C)
at least 50% of the members of the board of directors of the Parent
Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) following the consummation of the Business Combination were
Incumbent Directors at the time of the Board's approval of the execution of
the initial agreement providing for such Business Combination; or
(4) the stockholders of the Holding Company approve a plan of complete
liquidation or dissolution of the Holding Company or the Bank or a sale of
all or substantially all of the Holding Company's or the Bank's assets.
Notwithstanding the foregoing, a Change in Control of the Holding
Company shall not be deemed to occur solely because any person acquires
beneficial ownership of more than 25% of Holding Company Voting Securities as a
result of the acquisition of Holding Company Voting Securities by the Holding
Company which reduces the number of Holding Company Voting Securities
outstanding; provided, that if after such acquisition by the Holding Company
such person becomes the beneficial owner of additional Holding Company Voting
Securities that increases the percentage of outstanding Holding Company Voting
Securities beneficially owned by such person, a Change in Control of the Holding
Company shall then occur.
(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 payments and benefits provided in paragraphs (c), (d), (e), (f) and (g) of
this Section 5 upon his termination of employment on or after the date the
Change in Control occurs due to (i) Executive's dismissal from employment with
the Holding Company or the Bank (or their successors), unless Executive's
termination is for Just Cause, or (ii) Executive's resignation at any time
during the term of this Agreement following any
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demotion(s), loss of title(s), office(s) or significant authority or
responsibility, reduction in annual compensation or benefits or relocation of
his principal place of employment by more than 40 miles from its location
immediately prior to the Change in Control; provided, however, that such
payments and benefits shall be reduced by any payments or benefits provided
pursuant to Section 4 of this Agreement.
(c) Upon the occurrence of a Change in Control followed by Executive's
termination of employment, as provided in paragraph (b) of this Section 5, the
Holding Company (or its successors) 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: (i) the
payments and benefits that would be due for the remaining term of the Agreement
pursuant to the provisions of Section 3 of this Agreement (provided that for
purposes of Section 3(b), the annual bonus amount shall be the highest bonus
earned during the last three fiscal years immediately prior to termination) or
(ii) three (3) times the sum of the following items:
(1) the average of Executive's annual base salary for the five (5)
preceding taxable years, including, if applicable, years of employment with
the Holding Company or the Bank, Richmond or Richmond Bank and their
predecessors and affiliates;
(2) the average bonus paid to Executive for the five (5) preceding
taxable years, including, if applicable, years of employment with the
Holding Company or the Bank, Richmond or Richmond Bank and their
predecessors and affiliates;
(3) the average income realized during the five (5) preceding taxable
years as a result of the vesting of any restricted stock granted to
Executive by the Holding Company or Richmond;
(4) the average fair market value of the allocation made on behalf of
Executive during the five (5) preceding taxable years determined as of the
date the allocation was made under any tax-qualified defined contribution
retirement plan sponsored by the Holding Company or the Bank, Richmond or
Richmond Bank and their predecessors and affiliates; provided, however,
that this amount shall not include the value of any allocation made on
behalf of Executive under the Richmond County Savings Bank Employee Stock
Ownership Plan during the year in which the Effective Time occurs solely as
a result of the Merger; and
(5) the average fair market value of the annual credit made on behalf
of Executive during the five (5) preceding taxable years under any
non-tax-qualified supplemental retirement plan sponsored by the Holding
Company or the Bank, Richmond or Richmond Bank and their predecessors and
affiliates; provided, however, that this amount shall not include the value
of any credit made on behalf of Executive under a
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supplemental plan related to the Richmond County Savings Bank Employee
Stock Ownership Plan during the year in which the Effective Time occurs
solely as a result as a result of the Merger.
(d) Upon the occurrence of a Change in Control, Executive will be entitled
to receive benefits due him under or contributed by the Holding Company or the
Bank on his behalf pursuant to any retirement, incentive, profit sharing or
other retirement, bonus, performance, disability or other employee benefit plan
provided by the Holding Company or the Bank to the extent such benefits are not
otherwise paid to Executive under a separate provision of this Agreement.
(e) Upon Executive's termination of employment pursuant to this Section 5,
the Holding Company will cause to be continued life, medical and disability
coverage substantially identical to the coverage provided by the Holding Company
or the Bank for Executive and any of his dependents covered under such plans
immediately prior to the Change in Control. Such coverage shall cease upon the
expiration of thirty-six (36) full calendar months following the Date of
Termination. In the event Executive's participation in any such plan or program
is barred, the Holding Company shall arrange to provide Executive and his
dependents with benefits substantially similar to those which Executive and his
dependents would otherwise have been entitled to receive under such plans and
programs, from which their continued participation is barred, or provide
Executive their economic equivalent.
(f) The use or provision of any membership, license, automobile use, or
other perquisites shall be continued during the remaining term of the Agreement
following a Change in Control 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 Holding Company or the Bank to such item
for a price equal to the then fair market value of the item.
(g) In the event that Executive is receiving monthly payments pursuant to
this Section 5, 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.
6. TAX INDEMNIFICATION PROVISIONS
(a) For any taxable year in which Executive shall be liable for the
payment of an excise tax under Section 4999 of the Code (or any successor
provision thereto), with respect to any payment in the nature of the
compensation made by the Holding Company or its subsidiaries, or Richmond,
Richmond Bank or its successors, to (or for the benefit of) Executive
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pursuant to this Agreement, the Prior Employment Agreements or otherwise, the
Holding Company (or any successor thereto) shall pay to Executive an amount
determined under the following formula:
An amount equal to: (E x P) + X
WHERE:
X = E x P
-----------------------------------------
1 - [(FI x (1 - SLI)) + SLI + E + M + PO]
E = the rate at which the excise tax is assessed under Section
4999 of the Code;
P = the amount with respect to which such excise tax is
assessed, determined without regard to this Section 6;
FI = the highest marginal rate of federal income, employment,
and other taxes (other than taxes imposed under Section
4999 of the Code) applicable to Executive for the taxable
year in question (including any effective increase in
Executive's tax rate attributable to the disallowance of
any deduction);
SLI = the sum of the highest marginal rates of income and
payroll tax applicable to Executive under applicable state
and local laws for the taxable year in question (including
any effective increase in Executive's tax rate
attributable to the disallowance of any deduction);
M = highest marginal rate of Medicare tax; and
PO = adjustment for phase out of or loss of deduction, personal
exemption or other similar items.
With respect to any payment in the nature of compensation that is
made to (or for the benefit of) Executive under the terms of this Agreement or
otherwise and on which an excise tax under Section 4999 of the Code may or will
be assessed, the payment determined under this Section 6 shall be made to
Executive on the earliest of (i) the date the Holding Company is required to
withhold such tax, or (ii) the date the tax is required to be paid by Executive.
It is the intention of the parties that the Holding Company provide Executive
with a full tax gross-up under the provisions of this Section 6, so that on a
net after-tax basis, the result to Executive shall be the same as if the excise
tax under Section 4999 (or any successor provisions) of the Code had not been
imposed. The payment may be adjusted, as appropriate, if alternative minimum tax
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rules under the Code are applicable to Executive.
(b) Notwithstanding the foregoing, if it is (i) initially determined by
the Holding Company's independent accountants that no excise tax under Section
4999 is due with respect to any payment or benefit described in the first
paragraph of Section 6(a) and, thereafter, it is determined in a final judicial
determination or a final administrative settlement that the Section 4999 excise
tax is due with respect to such payments or benefits or (ii) subsequently
determined in a final judicial determination or a final administrative
settlement to which Executive is a party that the excise tax under Section 4999
is due or that the excess parachute payment as defined in Section 4999 of the
Code is more than the amount determined as "P", above (such revised
determination under (i) or (ii) above being thereafter referred to as the
"Determinative Excess Parachute Payment"), then the independent accountants of
the Holding Company (or any successor thereto) shall determine the amount (the
"Adjustment Amount"), the Holding Company (or its successor) must pay to
Executive, in order to put Executive in the same position as Executive would
have been if the amount determined as "P" above had been equal to the
Determinative Excess Parachute Payment. In determining the Adjustment Amount,
the tax advisors shall take into account any and all taxes (including any
penalties of any nature and interest) paid or payable by Executive in connection
with such final judicial determination or final administrative settlement. As
soon as practicable after the Adjustment Amount has been so determined, the
Holding Company shall pay the Adjustment Amount to Executive.
(c) The Holding Company (or its successor) shall indemnify and hold
Executive harmless from any and all losses, costs and expenses (including
without limitation, reasonable attorney's fees, reasonable accountant's fees,
interest, fines and penalties of any kind) which Executive incurs as a result of
any administrative or judicial review of Executive's liability under Section
4999 of the Code by the Internal Revenue Service or any comparable state agency
through and including a final judicial determination or final administrative
settlement of any dispute arising out of Executive's liability for the Section
4999 excise tax or otherwise relating to the classification for purposes of
Section 280G of the Code of any payment or benefit in the nature of compensation
made or provided to Executive by the Holding Company or any successor thereto.
Executive shall promptly notify the Holding Company in writing whenever
Executive receives notice of the commencement of any judicial or administrative
proceeding, formal or informal, in which the federal tax treatment under Section
4999 of the Code of any amount paid or payable is being reviewed or is in
dispute (including a notice of audit or other inquiry concerning the reporting
of Executive's liability under Section 4999). The Holding Company (or its
successor) may assume control at its expense over all legal and accounting
matters pertaining to such federal or state tax treatment (except to the extent
necessary or appropriate for Executive to resolve any such proceeding with
respect to any matter unrelated to amounts paid or payable pursuant to this
contract) and Executive shall cooperate fully with the Holding Company in any
such proceeding. Executive shall not enter into any compromise or settlement or
otherwise prejudice any rights the Holding Company (or its successor) may have
in connection therewith without prior consent by the Holding Company (or its
successor). In the
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event that the Holding Company (or its successor) elects not to assume control
over such matters, the Holding Company (or its successor) shall promptly
reimburse Executive for all expenses related thereto as and when incurred upon
presentation of appropriate documentation relating thereto.
It is intended by the parties to this Agreement that this Section 6 shall
survive the expiration of the term of this Agreement.
7. TERMINATION FOR CAUSE.
Termination for "Just Cause" shall mean a termination because of: (i)
Executive's personal dishonesty, willful misconduct, 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 which results in a material loss to the Holding Company or the
Bank, or (ii) Executive's conviction of a crime or act involving moral turpitude
or a final judgement rendered against Executive based upon actions of Executive
which involve moral turpitude. For the purposes of this Section 7, no act, or
the failure to act, on Executive's part shall be "willful" unless done, or
omitted to be done, not in good faith and without reasonable belief that the
action or omission was in the best interests of the Holding Company or its
affiliates. 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 three-fourths (3/4) of the
members of the Board at a meeting of the Board called and held for that purpose
(after reasonable notice to Executive and an opportunity for him, together with
counsel, to be heard before the Board), finding that in the good faith opinion
of the Board, Executive was engaged in 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. During the period beginning on the date of the
Notice of Termination pursuant to Section 8 hereof through the Date of
Termination, stock options and related limited rights (if any) granted to
Executive under any stock option plan shall not be exercisable nor shall any
unvested awards granted to Executive under any stock benefit plan of the Holding
Company vest. At the Date of Termination, such stock options and related limited
rights (if any) and any such unvested awards shall become null and void and
shall not be exercisable by or delivered to Executive at any time subsequent to
such termination for Just Cause.
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8. NOTICE.
(a) Any purported termination by the Holding Company or by Executive shall
be communicated by a Notice of Termination to the other party. 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 (which, in the case of a termination for Just Cause, shall not be
less than thirty (30) days from the date such Notice of Termination is given).
For purposes of this Agreement, all notices and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given when delivered or five (5) days after deposit in the United States mail,
certified and return receipt requested, postage prepaid, to such address as
either party may have furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt.
(c) If, within thirty (30) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, except upon the occurrence of a
Change in Control and voluntary termination by Executive in which case the Date
of Termination shall be the date specified in the Notice, the Date of
Termination shall be the date on which the dispute is finally determined, either
by mutual written agreement of the parties, by a binding arbitration award, or
by a final judgment, order or decree of a court of competent jurisdiction (the
time for appeal therefrom having expired and no appeal having been perfected)
and provided further that the Date of Termination shall be extended by a notice
of dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Holding Company will
continue to pay Executive his full compensation in effect when the notice giving
rise to the dispute was given (including, but not limited to, Base Salary) and
continue him as a participant in all compensation, benefit and insurance plans
in which he was participating when the notice of dispute was given, until the
dispute is finally resolved in accordance with this Agreement. Amounts paid
under this Section 8(c) are in addition to all other amounts due under this
Agreement and shall not be offset against or reduce any other amounts due under
this Agreement.
9. DISABILITY
(a) Disability
(i) The Holding 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
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Executive's becoming eligible for long-term disability benefits under a
long-term disability plan of the Holding Company or the Bank (or, if the
Holding 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 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 may
require Executive to submit to such physical or mental evaluations and
tests as it deems reasonably appropriate.
(ii) In the event of such 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-six and
two-thirds percent (66 2/3%) of Executive's monthly base salary from the
one hundred eighty-first (181st) day following termination through the
earliest of the date of Executive's death, recovery from such disability or
the date Executive attains age 65. 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 Holding 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 Holding 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
Holding Company or the Bank.
10. POST-TERMINATION OBLIGATIONS.
(a) All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with paragraph (b) of this Section 10 during
the term of this Agreement and for one (1) full year after the expiration or
termination hereof.
(b) Executive shall, upon reasonable notice, furnish such information and
assistance to the Holding Company as may reasonably be required by the Holding
Company in connection with any litigation in which it or any of its subsidiaries
or affiliates is, or may become, a party. The Holding Company will reimburse the
Executive for reasonable costs incurred by the Executive in connection with
furnishing such information and assistance to the Holding Company.
11. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash, check
or wire transfer from the general funds of the Holding Company.
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12. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
The parties agree that the Prior Employment Agreements are null and void
effective as of the date hereof. Notwithstanding the foregoing, if the Merger
Agreement is terminated pursuant to Article VIII of the Merger Agreement, the
Prior Employment Agreements shall be deemed to have not been canceled and this
Agreement shall be null and void. In consideration of Executive's termination of
the Prior Employment Agreements, Richmond and Richmond Bank agree that they will
not terminate Executive's employment without Just Cause during the period of
time beginning as of the date hereof and ending at the Effective Time. This
Agreement contains the entire understanding between the parties hereto and
supersedes any prior employment agreement between any predecessor of the Holding
Company and Executive (including the Prior Employment Agreements), 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.
13. NO ATTACHMENT; SUCCESSORS.
(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 and the Holding Company and their respective successors and assigns.
14. 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.
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15. 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 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.
16. 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.
17. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New York
without regard to principles of conflicts of law of that state.
18. 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 Holding 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.
19. PAYMENT OF LEGAL FEES.
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: (i)
all legal fees incurred by Executive in resolving such dispute or controversy,
and (ii) any back-pay, including salary, bonuses and any other cash
compensation, fringe benefits and any compensation and benefits due Executive
under this Agreement.
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20. INDEMNIFICATION.
(a) The Holding 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 the Delaware General Corporation Law and the Holding Company's
certificate of incorporation and bylaws 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 Holding Company, any affiliate of the Holding Company
or any predecessor to the Holding Company or and affiliate of the Holding
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 cost of reasonable settlements.
(b) Any payments made to Executive pursuant to this Section are subject to
and conditioned upon compliance with 12 U.S.C. Section 1828(k) and 12 C.F.R.
Part 359 and any rules or regulations promulgated thereunder.
21. SUCCESSOR TO THE HOLDING COMPANY.
The Holding Company shall require any successor or assignee, whether direct
or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or the Holding Company,
expressly and unconditionally to assume and agree to perform the Holding
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.
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SIGNATURES
IN WITNESS WHEREOF, New York Community Bancorp, Inc., Richmond County
Financial Corp. and Richmond County Savings Bank have 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 the date set
forth on the first page hereof.
ATTEST: NEW YORK COMMUNITY BANCORP, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Secretary
[SEAL]
ATTEST: RICHMOND COUNTY FINANCIAL CORP.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Secretary By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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[SEAL]
ATTEST: RICHMOND COUNTY SAVINGS BANK
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Secretary
[SEAL]
WITNESS: EXECUTIVE
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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