Exhibit 10.2: Form of Employment Agreement between ▇▇▇▇▇▇ Savings Bank and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇, R.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
The attached Employment Agreement, as amended and restated, by and between
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Savings Bank is substantially identical in all
material respects (except as otherwise noted below) with the other contracts
listed below which are not being filed as separate exhibits to this Report.
Parties to Employment Agreement:
--------------------------------
▇▇▇▇▇▇ Savings Bank and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. (1)
▇▇▇▇▇▇ Savings Bank and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (2)
▇▇▇▇▇▇ Savings Bank and ▇▇▇▇ ▇. ▇▇▇▇ (3)
▇▇▇▇▇▇ Savings Bank and R. ▇▇▇▇▇▇▇ ▇▇▇▇▇ (4)
▇▇▇▇▇▇ Savings Bank and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (5)
▇▇▇▇▇▇ Savings Bank and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (6)
▇▇▇▇▇▇ Savings Bank and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (7)
(1) ▇▇. ▇▇▇▇▇▇▇▇▇▇'▇ Employment Agreement with ▇▇▇▇▇▇ Savings Bank is
substantially identical to Exhibit 10.2 except as to (i) the name of
the signatory, which is ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.; (ii) the position in
Section 1 of the Employment Agreement, which is Senior Executive Vice
President and Chief Operating Officer; and (iii) the amount of the
base salary in Section 3(a), which is $280,000 per year.
(2) ▇▇. ▇▇▇▇▇▇'▇ Employment Agreement with ▇▇▇▇▇▇ Savings Bank is
substantially identical to Exhibit 10.2 except as to (i) the name of
the signatory, which is ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; (ii) the position in
Section 1 of the Employment Agreement, which is Executive Vice
President and Chief Financial Officer, but not as a director of ▇▇▇▇▇▇
Savings Bank; and (iii) the amount of the base salary in Section 3(a),
which is $197,000 per year.
(3) ▇▇. ▇▇▇▇'▇ Employment Agreement with ▇▇▇▇▇▇ Savings Bank is
substantially identical to Exhibit 10.2 except as to (i) the name of
the signatory, which is ▇▇▇▇ ▇. ▇▇▇▇; (ii) the position in Section 1
of the Employment Agreement, which is Executive Vice President and
Investment Officer, but not as a director of ▇▇▇▇▇▇ Savings Bank; and
(iii) the amount of the base salary in Section 3(a), which is $187,000
per year.
(4) ▇▇. ▇▇▇▇▇'▇ Employment Agreement with ▇▇▇▇▇▇ Savings Bank is
substantially identical to Exhibit 10.2 except as to (i) the name of
the signatory, which is R. ▇▇▇▇▇▇▇ ▇▇▇▇▇; (ii) the position in Section
1 of the Employment Agreement, which is Executive Vice President,
General Counsel and Corporate Secretary, but not as a director of
▇▇▇▇▇▇ Savings Bank; (iii) the amount of the base salary in Section
3(a), which is $235,000 per year; (iv) the effective date of the
agreement, which is
March 27, 2001; and (v) certain clarifying language with respect to
the payment by ▇▇▇▇▇▇ Savings Bank to ▇▇. ▇▇▇▇▇ of an excise tax under
Section 4999 of the Internal Revenue Code in the event of a change in
control as described in Sections 5(h)-(j) of the Employment Agreement.
(5) ▇▇. ▇▇▇▇▇▇▇▇'▇ Employment Agreement with ▇▇▇▇▇▇ Savings Bank is
substantially identical to Exhibit 10.2 except as to (i) the name of
the signatory, which is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; (ii) the position in
Section 1 of the Employment Agreement, which is Executive Vice
President and Human Resources Officer, but not as a director of ▇▇▇▇▇▇
Savings Bank; (iii) the amount of the base salary in Section 3(a),
which is $200,000 per year; (iv) the effective date of the agreement,
which is March 1, 2001; and (v) certain clarifying language with
respect to the payment by ▇▇▇▇▇▇ Savings Bank to ▇▇. ▇▇▇▇▇▇▇▇ of an
excise tax under Section 4999 of the Internal Revenue Code in the
event of a change in control as described in Sections 5(h)-(j) of the
Employment Agreement.
(6) ▇▇. ▇▇▇▇▇▇▇▇▇'▇ Employment Agreement with ▇▇▇▇▇▇ Savings Bank is
substantially identical to Exhibit 10.2 except as to (i) the name of
the signatory, which is ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇; (ii) the position in
Section 1 of the Employment Agreement, which is Executive Vice
President and Chief Information Officer, but not as a director of
▇▇▇▇▇▇ Savings Bank; and (iii) the amount of the base salary in
Section 3(a), which is $173,000 per year.
(7) ▇▇. ▇▇▇▇▇▇'▇ Employment Agreement with ▇▇▇▇▇▇ Savings Bank is
substantially identical to Exhibit 10.2 except as to (i) the name of
the signatory, which is ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; (ii) the position in Section
1 of the Employment Agreement, which is Executive Vice President and
Retail Banking Officer, but not as a director of ▇▇▇▇▇▇ Savings Bank;
and (iii) the amount of the base salary in Section 3(a), which is
$180,000 per year.
Exhibit 10.2
▇▇▇▇▇▇ SAVINGS BANK
EMPLOYMENT AGREEMENT
This AGREEMENT, originally entered into on January 10, 1997, is amended and
restated in its entirety effective March 22, 1999, by and between Roslyn Savings
Bank (the "Institution"), a state-chartered savings institution, with its
principal administrative office at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ Bancorp, Inc. (the "Holding Company"), a corporation organized
under the laws of the state of Delaware and the holding company of the
Institution, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Executive").
WHEREAS, the Institution wishes to continue to assure itself of the
services of Executive for the period provided in this Agreement; and
WHEREAS, Executive is willing to continue to serve in the employ of the
Institution on a full-time basis in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. CONSIDERATION PROVIDED BY THE EXECUTIVE.
During the period of his employment hereunder, Executive agrees to serve as
President and Chief Executive Officer of the Institution. Executive shall render
administrative and management services to the Institution such as are
customarily performed by persons in a similar executive capacity. During said
period, Executive also agrees to serve, if elected, as an officer and director
of the Institution. Failure to reelect Executive as President and Chief
Executive Officer of the Institution, or failure to reelect Executive as
President and Chief Executive Officer of the Institution, or failure to nominate
or reelect Executive to the Board of Directors of the Institution, without the
consent of Executive, shall constitute a breach of this Agreement.
2. TERMS.
(a) The period of Executive's employment under this Agreement shall be
deemed to have commenced as of the date first above written and shall continue
for a period of sixty (60) full calendar months from the effective date of the
date this Agreement, as amended and restated. Commencing on the date of the
execution of this Agreement, as amended and restated, the term of this Agreement
shall be extended for one day each day so that a constant sixty (60) calendar
month term shall remain in effect, until such time as the Board of Directors of
the Institution (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 be fixed and
shall end on the fifth anniversary of the date of such written notice.
1
(b) During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the Institution and participation in community and
civic organizations; provided, however, that, with the approval of the Board, as
evidenced by a resolution of such 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 conflict of interest with the Institution, or materially
affect the performance of Executive's duties pursuant to this Agreement.
(c) Notwithstanding anything herein contained to the contrary, Executive's
employment with the Institution may be terminated by the Institution or
Executive during the term of this Agreement, subject to the terms and conditions
of this Agreement.
3. CONSIDERATION PROVIDED BY THE INSTITUTION.
(a) The compensation specified under this Agreement shall constitute
consideration paid by the Institution in exchange for the duties described in
Section 1. The Institution shall pay Executive as compensation a salary of not
less than $572,000 per year ("Base Salary"). Base Salary shall include any
amounts of compensation deferred by Executive under any employee benefit plan or
deferred compensation arrangement maintained by the Institution or the Holding
Company. Such Base Salary shall be payable bi-weekly. During the period of this
Agreement, Executive's Base Salary shall be reviewed at least annually; the
first such review will be made no later than one year from the date of this
Agreement. Such review shall be conducted by the Board or a committee designated
by the Board, and the Board may increase Executive's Base Salary at any time.
The increased Base Salary shall become the new "Base Salary" for purposes of
this Agreement. In addition to the Base Salary provided in this Section 3(a),
the Institution shall also provide Executive, at no cost to Executive, with all
such other benefits as are provided uniformly to permanent full-time employees
of the Institution or the Holding Company.
(b) The Institution will provide Executive with the opportunity to
participate in employee benefit plans, arrangements and perquisites
substantially equivalent to those in which Executive was participating or
otherwise deriving a benefit from immediately prior to the beginning of the term
of this Agreement, and the Institution 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 affect. Without limiting the generality of the foregoing provisions
of this Subsection (b), Executive will be entitled to participate in or receive
benefits under any employee benefit plans, whether tax-qualified or otherwise,
including, but not limited to, retirement plans, supplemental retirement plans,
pension plans, profit-sharing plans, health-and-accident plan, medical coverage
or any other employee benefit plan or arrangement
2
made available by the Institution now or in the future 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.
Executive will be entitled to incentive compensation and bonuses as provided in
any plan or arrangement of the Institution in which Executive is eligible to
participate. Nothing paid to Executive under any such plan or arrangement will
be deemed to be in lieu of other compensation to which Executive is entitled
under this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of this
Section 3 and other compensation provided for by paragraph (b) of this Section
3, the Institution shall pay or reimburse Executive for all reasonable travel
and other expenses incurred by Executive in performing his obligations under
this Agreement, including expenses associated with membership in clubs or
organizations, as mutually agreed to between the Board and Executive.
(d) Except as otherwise provided in this Section 3(d), the Institution will
provide to Executive for each calendar year during the term of this Agreement
and for the remaining term of this Agreement after a termination of employment
following an Event of Termination as defined in Section 4 of this Agreement, no
later than 90 days after the close of the calendar year to which such payment
pertains ("Benefit Year"), a "Benefit Equity Payment" in addition to the
contributions actually made (or benefits actually accrued) with respect to such
year to any tax- qualified or non-tax-qualified compensation or benefit plan,
arrangement, policy or program funded or sponsored by the Institution or the
Holding Company, including but not limited to those of the following types:
deferred compensation, retirement, defined benefit pension, defined contribution
pension, supplemental executive retirement, profit sharing, stock option or
stock bonus award, life insurance, health, medical, dental, disability,
incentive compensation or bonus plan, perquisites, or other fringe benefits
("Benefit Plans") made on his behalf or otherwise accrued as consideration for
his services described in Section 1 of this Agreement. The Benefit Equity
Payment shall be an amount calculated by an actuary accountant or other licensed
professional to equal the amount of the contributions (or other benefits) which
would have been made or accrued for Executive for such year pursuant to all
Benefit Plans as consideration for his services described in Section 1 of this
Agreement but were not made or accrued because (i) any of the Benefit Plans were
terminated or not funded, or (ii) the Executive was no longer employed or will
not be employed by the Institution or the Holding Company.
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. 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 Institution of Executive's full-time employment hereunder for any reason
other than, Retirement, as defined in Section 6 hereof, or Termination for
Cause, as defined in Section 7 hereof; (ii) Executive's resignation from the
Institution's employ, upon any (A) notice to Executive by the Institution of
non-renewal of the term of this
3
Agreement, (B) failure to elect or reelect or to appoint or reappoint Executive
as President and Chief Executive Officer, or failure to nominate or reelect
Executive to the Board of Directors of the Institution unless Executive consents
to any such event, (C) a material change in Executive's function, duties, or
responsibilities, which change would cause Executive's position to become one of
lesser responsibility, importance, or scope from the position and attributes
thereof described in Section 1, above, (and any such material change shall be
deemed a continuing breach of this Agreement), (D) a relocation of Executive's
principal place of employment by more than twenty-five (25) miles from its
location at the effective date of this Agreement, or a material reduction in the
benefits and perquisites available to Executive to which Executive does not
consent or for which Executive is not or will not be provided the economic
benefit pursuant to Section 3(b) hereof, (E) liquidation or dissolution of the
Institution or the Holding Company, or (F) breach of this Agreement by the
Institution. Upon the occurrence of any event described in clauses (A), (B),
(C), (D), (E) or (F), above, Executive shall have the right to elect to
terminate his employment under this Agreement by resignation upon not less than
sixty (60) days prior written notice given within a reasonable period of time
not to exceed, except in case of a continuing breach, four calendar months after
the event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination on the Date of
Termination as defined in Section 8, the Institution shall be obligated to pay
Executive, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be: (i) the amount of the
remaining payments and benefits that Executive would have earned if he had
continued his employment with the Institution or Holding Company during the
remaining unexpired term of this Agreement, based on the Executive's Base Salary
and benefits provided at the Date of Termination, as set out in Sections 3(a),
(b) and (d) hereof, as the case may be, and the amount still due the Executive
under any paragraph of Section 3 for service through the Date of Termination. At
the election of Executive, which election is to be made within thirty (30) days
of the Date of Termination, such payments shall be made in a lump sum or paid
monthly during the remaining term of the agreement following Executive's
termination. In the event that no election is made, payment to Executive will be
made in a lump sum. Such payments shall not be reduced in the event Executive
obtains other employment following termination of employment.
(c) Upon the occurrence of an Event of Termination, Executive will be
entitled to receive benefits due him under or contributed by the Institution or
the Holding Company on his behalf pursuant to any retirement, incentive, profit
sharing, bonus, performance, disability or other employee benefit plan
maintained by the Institution or the Holding Company on Executive's behalf to
the extent such benefits are not otherwise paid to Executive under a separate
provision of this Agreement.
(d) To the extent that the Institution or the Holding Company continues to
offer any life, medical, health, disability or dental insurance plan or
arrangement in which Executive participates in on the last day of his employment
(each being a "Welfare Plan"), after an Event of Termination (as herein
defined), Executive and his dependents shall continue participating in
4
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 Institution or the Holding Company does not offer the
Welfare Plans after the Event of Termination, then the Institution shall provide
Executive with a payment equal to the actuarial value of the provision of such
benefit 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.
(e) In the event that Executive is receiving monthly payments pursuant to
Section 4(b) hereof, on an annual basis, thereafter, between the dates of
January 1 and January 31 of each year, Executive shall elect whether, the
balance of the amount payable under the Agreement at that time shall be paid in
a lump sum or on a pro rata basis. Such election shall be irrevocable for the
year for which such election is made.
5. CHANGE IN CONTROL.
(a) For purposes of this Agreement, a "Change in Control" of the
Institution or the Holding Company shall mean an event of a nature that: (i)
would be required to be reported in response to Item 1(a) of the current report
on Form 8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of
the Securities Exchange Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇"); or (ii) results in a
Change in Control of the Institution or the Holding Company within the meaning
of the Change in Bank Control Act and the Rules and Regulations promulgated by
the Federal Deposit Insurance Corporation ("FDIC") at 12 C.F.R. (S). 303.4(a),
with respect to the Institution, and the Rules and Regulations promulgated by
the Office of Thrift Supervision ("OTS") (or its predecessor agency), with
respect to the Holding Company, as in effect on the date of this Agreement; or
(iii) without limitation such a Change in Control shall be deemed to have
occurred at such time as (A) any "person" (as the term is used in Sections 13(d)
and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of voting
securities of the Institution or the Holding Company representing 20% or more of
the Institution's or the Holding Company's outstanding voting securities or
right to acquire such securities except for any voting securities of the
Institution purchased by the Holding Company and any voting securities purchased
by any employee benefit plan of the Holding Company or its Subsidiaries, or (B)
individuals who constitute the Board on the date hereof (the "Incumbent Board")
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 three-quarters of the directors comprising the
Incumbent Board, or whose nomination for election by the Holding Company's
stockholders was approved by a Nominating Committee solely composed of members
which are Incumbent Board members, shall be, for purposes of this clause (B),
considered as though he were a member of the Incumbent Board, or (C) a plan of
reorganization, merger, consolidation, sale of all or substantially all the
5
assets of the Institution or the Holding Company or similar transaction occurs
or is effectuated in which the Institution or Holding Company is not the
resulting entity, or (D) a proxy statement has been distributed soliciting
proxies from stockholders of the Holding Company, by someone other than the
current management of the Holding Company, seeking stockholder approval of a
plan of reorganization, merger or consolidation of the Holding Company or
Institution with one or more corporations as a result of which the outstanding
shares of the class of securities then subject to such plan or transaction are
exchanged for or converted into cash or property or securities not issued by the
Institution or the Holding Company shall be distributed, or (E) a tender offer
is made for 20% or more of the voting securities of the Institution or Holding
Company then outstanding.
(b) If any of the events described in Section 5(a) hereof constituting a
Change in Control have occurred or the Board has determined that a Change in
Control has occurred, Executive shall be entitled to the 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 at any time during
the term of this Agreement due to (1) Executive's dismissal; (2) Executive's
voluntary resignation for any reason on or within the sixty (60) day period
immediately following the date a Change in Control has occurred; or (3)
Executive's resignation following any demotion, loss of title, office or
significant authority or responsibility, reduction in annual compensation or
benefits or relocation of his principal place of employment by more than 25
miles from its location immediately prior to the Change in Control, unless such
termination is because of his death, or Termination for Cause; provided,
however, that such payments 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 in Section 5(b), the Institution 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, a sum equal to the greater of: (1) the payments due for the
remaining term of the Agreement or (2) the greater of (i) five (5) times
Executive's average annual compensation for the three (3) preceding taxable
years or such lesser number of years in the event that Executive shall have been
employed by the Institution or the Holding Company for less than three (3) years
or (ii) five (5) times Executive's annual compensation for the last taxable year
immediately preceding the Change in Control. In determining Executive's average
annual compensation, annual compensation shall include Base Salary and any other
taxable income, including but not limited to amounts related to the granting,
vesting or exercise of restricted stock or stock option awards, commissions,
bonuses (whether paid or accrued for the applicable period), pension and profit
sharing plan contributions or benefits (whether or not taxable), severance
payments, retirement benefits, director or committee fees and fringe benefits
paid or to be paid to Executive or paid for Executive's benefit during any such
year. At the election of Executive, which election is to be made prior to or
within thirty (30) days of the Date of Termination on or following a Change in
Control, such payment may be made in a lump sum (without discount for early
payment) on or immediately following the Date of Termination (which may be the
date a Change in Control occurs) or paid in equal monthly installments during
6
the sixty (60) months following Executive's termination. In the event that no
election is made payment to Executive will be made on a monthly basis during the
sixty (60) months following Executive's termination.
(d) Upon the occurrence of a Change in Control, Executive will be entitled
to receive benefits due him under or contributed by the Institution or the
Holding Company on his behalf pursuant to any retirement, incentive, profit
sharing, bonus, performance, disability or other employee benefit plan
maintained by the Institution or the Holding Company on Executive's behalf to
the extent such benefits are not otherwise paid to Executive under a separate
provision of this Agreement.
(e) Upon the occurrence of a Change in Control and Executive's termination
of employment in connection therewith, the Institution will cause to be
continued life, medical and disability coverage substantially identical to the
coverage maintained by the Institution or Holding Company for Executive and any
of his dependents covered under such plans prior to the Change in Control. Such
coverage and payments shall cease upon the expiration of sixty (60) full
calendar months following the Date of Termination. In the event Executive's
participation in any such plan or program is barred, the Institution shall
arrange to provide Executive and his dependents with benefits substantially
similar as those of 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 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
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 the Executive, the Executive will have the option to purchase all rights then
held by the Institution or the Holding Company 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
Section 5(c) hereof, on an annual basis, thereafter, between the dates of
January 1 and January 31 of each year, Executive shall elect whether the balance
of the amount payable under the Agreement at that time shall be paid in a lump
sum or on a pro rata basis pursuant to such section. Such election shall be
irrevocable for the year for which such election is made.
(h) Notwithstanding the preceding paragraphs of this Section 5, for any
taxable year in which the Executive shall be liable, as determined 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 compensation
made by the Institution or the Holding Company (or for the benefit of) Executive
pursuant to this Agreement or otherwise, the Institution shall pay to Executive
an amount determined under the following formula:
7
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 2;
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;
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;
M = the highest marginal rate of Medicare; and
PO = the 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 Section or otherwise and
on which an excise tax under Section 4999 of the Code will be assessed, the
payment determined under this Section 5 shall be made to Executive on the
earliest of (i) the date the Institution is required to withhold such tax, (ii)
the date the tax is required to be paid by Executive, or (iii) at the time of
the Change in Control. It is the intention of the parties that the Institution
provide Executive with a full tax gross-up under the provisions of this Section,
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 tax gross-up may be adjusted if alternative minimum
tax rules are applicable to Executive.
(i) Notwithstanding the foregoing, if it shall subsequently be determined
in a final judicial determination or a final administrative settlement to which
Executive is a party that the excess parachute payment as defined in Section
4999 of the Code, reduced as described above, is more than the amount determined
as "P", above (such greater amount being hereafter referred to as the
"Determinative Excess Parachute Payment") then the Institution's independent
accountants
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shall determine the amount (the "Adjustment Amount") the Institution must pay to
the Executive, in order to put the Executive (or the Institution, as the case
may be) in the same position as the Executive (or the Holding Company, as the
case may be) 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 independent accountants shall take into account any and
all taxes (including any penalties and interest) paid by or for Executive or
refunded to Executive or for Executive's benefit. As soon as practicable after
the Adjustment Amount has been so determined, the Holding Company shall pay the
Adjustment Amount to Executive.
(k) In each calendar year that Executive receives payments or benefits
under this Agreement, Executive shall report on his state and federal income tax
returns such information as is consistent with the determination made by the
independent accountants of the Institution as described above. The Institution
shall indemnify and hold Executive harmless from any and all losses, costs and
expenses (including without limitation, reasonable attorney's fees, interest,
fines and penalties) which Executive incurs as a result of so reporting such
information. Executive shall promptly notify the Institution in writing whenever
the Executive receives notice of the institution of a judicial or administrative
proceeding, formal or informal, in which the federal tax treatment under Section
4999 of the Code of any amount paid or payable under this Supplemental Agreement
is being reviewed or is in dispute. The Institution shall assume control at its
expense over all legal and accounting matters pertaining to such federal 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 Institution in any such proceeding. 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 Institution may
have in connection therewith without prior consent to the Institution.
6. TERMINATION UPON RETIREMENT.
Termination of Executive based on "Retirement" shall mean termination in
accordance with the Institution's retirement policy or in accordance with any
retirement arrangement established with Executive's consent with respect to him.
Upon termination of Executive upon Retirement, Executive shall be entitled to
all benefits under any retirement plan of the Institution and other plans to
which Executive is a party or a participant.
7. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination because of: (1)
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 Institution or the
Holding Company, or (2) Executive's conviction of a crime or act involving moral
turpitude or a final
9
judgement rendered against Executive based upon actions of Executive which
involve moral turpitude. For the purposes of this Section, 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 Institution or its affiliates.
Notwithstanding the foregoing, Executive shall not be deemed to have been
terminated for 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 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 guilty of conduct justifying Termination for Cause and specifying
the particulars thereof in detail. The Executive shall not have the right to
receive compensation or other benefits for any period after Termination for
Cause. During the period beginning on the date of the Notice of Termination for
Cause pursuant to Section 8 hereof through the Date of Termination, stock
options and related limited rights 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 Institution, the Holding Company or any
subsidiary or affiliate thereof, vest. At the Date of Termination, such stock
options and related limited rights 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 Cause.
8. NOTICE.
(a) Any purported termination by the Institution 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 (which, in the case of a Termination for Cause, shall not be less
than thirty (30) days from the date such Notice of Termination is given);
provided, however, that if a dispute regarding Executive's termination exists,
the "Date of Termination" shall be determined in accordance with Section 8(c) of
this Agreement.
(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
10
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 Institution 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 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. POST-TERMINATION OBLIGATIONS.
All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with this Section 9 for one (1) full year
after the earlier of the expiration of this Agreement or termination of
Executive's employment with the Institution. Executive shall, upon reasonable
notice, furnish such information and assistance to the Institution as may
reasonably be required by the Institution in connection with any litigation in
which it or any of its subsidiaries or affiliates is, or may become, a party.
10. NON-COMPETITION AND NON-DISCLOSURE.
(a) Upon any termination of Executive's employment hereunder pursuant to
Section 4 hereof, Executive agrees not to compete with the Institution for a
period of one (1) year following such termination in any city, town or county in
which the Executive's normal business office is located and the Institution 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. 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 Institution. The parties hereto,
recognizing that irreparable injury will result to the Institution, 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 Institution, 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 7 hereof, 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 Institution 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
Institution from pursuing any other remedies available to the Institution for
such breach or threatened breach, including the recovery of damages from
Executive.
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(b) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Institution as it
may exist from time to time, is a valuable, special and unique asset of the
business of the Institution. 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 Institution thereof to any person, firm, corporation,
or other entity for any reason or purpose whatsoever unless expressly authorized
by the Board of Directors or required by law. Notwithstanding the foregoing,
Executive may disclose any knowledge of banking, financial and/or economic
principles, concepts or ideas which are not solely and exclusively derived from
the business plans and activities of the Institution. Further, Executive may
disclose information regarding the business activities of the Institution to the
Superintendent of Banks of the State of New York, the New York Banking
Department, OTS and the Federal Deposit Insurance Corporation ("FDIC") pursuant
to a formal regulatory request. In the event of a breach or threatened breach by
the Executive of the provisions of this Section, the Institution will be
entitled to an injunction restraining Executive from disclosing, in whole or in
part, the knowledge of the past, present, planned or considered business
activities of the Institution or from rendering any services to any person,
firm, corporation, 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 Institution from pursuing any other remedies
available to the Institution for such breach or threatened breach, including the
recovery of damages from Executive.
11. SOURCE OF PAYMENTS.
(a) All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Institution. The Holding Company, however,
unconditionally guarantees payment and provision of all amounts and benefits due
hereunder to Executive and, if such amounts and benefits due from the
Institution are not timely paid or provided by the Institution, such amounts and
benefits shall be paid or provided by the Holding Company.
(b) Notwithstanding any provision herein to the contrary, to the extent
that payments and benefits, as provided by this Agreement, are paid to or
received by Executive under the Employment Agreement amended and restated as of
March 22, 1999, between Executive and the Holding Company, such compensation
payments and benefits paid by the Holding Company will be subtracted from any
amounts due simultaneously to Executive under similar provisions of this
Agreement.
12. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Institution or any
predecessor of the Institution 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
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those available to him without reference to this Agreement.
13. 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 and the Institution 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.
15. REQUIRED PROVISIONS.
Any payments made to Executive pursuant to this Agreement, or otherwise,
are subject to and conditioned upon compliance with 12 U.S.C. (S).1828(k) and
any rules and regulations promulgated thereunder, including 12 C.F.R. Part 359.
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 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.
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17. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
18. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New York,
unless otherwise specified herein.
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 arbitrators sitting in a location selected by the Executive within
fifty (50) miles from the location of the Institution, 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.
20. PAYMENT OF COSTS AND LEGAL FEES AND REINSTATEMENT OF BENEFITS.
In the event any dispute or controversy arising under or in connection with
Executive's termination is resolved in favor of the Executive, whether by
judgment, arbitration or settlement, Executive shall be entitled to the payment
of: (1) all legal fees incurred by Executive in resolving such dispute or
controversy, and (2) any back-pay, including salary, bonuses and any other cash
compensation, fringe benefits and any compensation and benefits due Executive
under this Agreement.
21. INDEMNIFICATION.
During the term of this Agreement and for an additional period of seven
years thereafter, the Institution 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, hold
harmless and defend Executive (and his heirs, executors and administrators) to
the fullest extent permitted under New York 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 Institution (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.
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22. SUCCESSOR TO THE INSTITUTION.
The Institution 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 Institution or the Holding
Company, expressly and unconditionally to assume and agree to perform the
Institution's obligations under this Agreement, in the same manner and to the
same extent that the Institution would be required to perform if no such
succession or assignment had taken place.
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SIGNATURES
IN WITNESS WHEREOF, ▇▇▇▇▇▇ Savings Bank and ▇▇▇▇▇▇ Bancorp, Inc. have
caused this Agreement to be executed and their seals to be affixed hereunto by
their duly authorized officers and directors, and Executive has signed this
Agreement on the 25th day of March, 1999.
ATTEST: ▇▇▇▇▇▇ SAVINGS BANK
/s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇ BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
---------------------------------- -----------------------------------
R. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Secretary For the Board of Directors
[SEAL]
ATTEST: ▇▇▇▇▇▇ BANCORP, INC.
(Guarantor)
/s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇ BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
---------------------------------- -----------------------------------
R. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Secretary For the Board of Directors
[SEAL]
WITNESS: EXECUTIVE
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------- ---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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