EXECUTIVE SUPPLEMENTAL RETIREMENT
INCOME AGREEMENT
FOR
▇▇▇▇ ▇▇▇▇▇▇▇
Flatbush Federal Savings & Loan Association
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
March 1, 2006
EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
This Executive Supplemental Retirement Income Agreement ("Agreement"),
effective as of this 1st day of March 2006, by and between Flatbush Federal
Savings & Loan Association, a federally chartered savings association,
hereinafter referred to as "Association" and ▇▇▇▇ ▇▇▇▇▇▇▇, a key employee and
executive hereinafter referred to as "Executive."
WITNESSETH:
WHEREAS, Executive is employed by the Association;
WHEREAS, the Association recognizes the valuable services heretofore
performed for it by Executive and wishes to encourage continued employment;
WHEREAS, Executive wishes to be assured that he will be entitled to a
certain amount of additional compensation for some definite period of time from
and after his retirement from active service with the Association and its
affiliates or other termination of his employment and wishes to provide his
beneficiary with benefits from and after his death;
WHEREAS, the Association has adopted this Executive Supplemental Retirement
Income Agreement to supplement the benefits otherwise available to Executive
under plans sponsored by the Association and its affiliates;
WHEREAS, the parties hereto wish to provide the terms and conditions upon
which the Association shall pay such additional compensation to Executive after
his retirement or other termination of his employment and/or death benefits to
his beneficiary after his death;
WHEREAS, the parties hereto intend that this Agreement be considered an
unfunded arrangement, maintained primarily to provide supplemental retirement
income for Executive, a member of a select group of management or highly
compensated employee of the Association for purposes of the Employee Retirement
Income Security Act of 1974, as amended;
WHEREAS, this Agreement is intended to comply with Section 409A of the
Internal Revenue Code; and
WHEREAS, Executive Supplemental Retirement Income Agreement controls all
issues relating to the Supplemental Retirement Income Benefit as described
herein.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto agree as follows:
SECTION I
DEFINITIONS
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When used herein, the following words shall have the meanings below unless
the context clearly indicates otherwise:
1.1 "Act" means the Employee Retirement Income Security Act of 1974, as it
may be amended from time to time.
1.2 "Association" means Flatbush Federal Savings & Loan Association and
any successor thereto.
1.3 "Beneficiary" means the person or persons designated by Executive, in
writing, as beneficiary to whom the share of a deceased Executive's
account is payable. If no beneficiary is so designated, then
Executive's Spouse, if living, will be deemed the beneficiary. If
Executive's Spouse is not living, then the Children of Executive will
be deemed the beneficiary. If there are no living Children, then the
Estate of Executive will be deemed the beneficiary.
1.4 "Cause" means personal dishonesty, willful misconduct, willful
malfeasance, 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), or final cease-and-desist order, material breach of any
provision of this Agreement, or gross negligence in matters of
material importance to the Association.
1.5 "Change in Control" of the Association shall mean (i) a change in
ownership of the Association under paragraph 1.5.1 below, or (ii) a
change in effective control of the Association under paragraph 1.5.2
below, or (iii) a change in the ownership of a substantial portion of
the assets of the Association under paragraph 1.5.3 below:
1.5.1 Change in the ownership of the Association. A change in the
ownership of the Association shall occur on the date that any one
person, or more than one person acting as a group (as defined in
Proposed Treasury Regulation Section 1.409A-3(g)(5)(v)(B) or
subsequent guidance), acquires ownership of stock of the
corporation that, together with stock held by such person or
group, constitutes more than 50 percent of the total fair market
value or total voting power of the stock of such corporation.
1.5.2 Change in the effective control of the Association. A change in
the effective control of the Association shall occur on the date
that either (i) any one person, or more than one person acting as
a group (as defined in Proposed Treasury Regulation Section
1.409A-3(g)(5)(v)(B) or subsequent guidance), acquires (or has
acquired during the 12-month period ending on the date of the
most recent acquisition by such person or persons) ownership of
stock of the corporation possessing 35 percent or more of the
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total voting power of the stock of such corporation; or (ii) a
majority of members of the corporation's board of directors is
replaced during any 12-month period by directors whose
appointment or election is not endorsed by a majority of the
members of the corporation's board of directors prior to the date
of the appointment or election, provided that for purposes of
this paragraph 1.5.2(ii), the term corporation refers solely to a
corporation for which no other corporation is a majority
shareholder.
1.5.3 Change in the ownership of a substantial portion of the
Association's assets. A change in the ownership of a substantial
portion of the Association's assets shall occur on the date that
any one person, or more than one person acting as a group (as
defined in Proposed Treasury Regulation Section
1.409A-3(g)(5)(v)(B) or subsequent guidance), acquires (or has
acquired during the 12-month period ending on the date of the
most recent acquisition by such person or persons) assets from
the corporation that have a total gross fair market value equal
to or more than 40 percent of the total gross fair market value
of (i) all of the assets of the Association or (ii) the value of
the assets being disposed of, either of which is determined
without regard to any liabilities associated with such assets.
1.5.4 Notwithstanding anything herein to the contrary, a Change in
Control shall not be deemed to have occurred upon the conversion
of Flatbush Federal Bancorp, Inc.'s mutual holding company parent
to stock form, or in connection with any reorganization used to
effect such a conversion.
1.5.5 Each of the sub-paragraphs 1.5.1 through 1.5.3 of this Section
1.5 shall be construed and interpreted consistent with the
requirements of Proposed Treasury Regulations Section 1.409A-3(a)
or subsequent guidance, except to the extent that such proposed
regulations are superceded by subsequent guidance.
1.6 "Children" means Executive's children, both natural and adopted, then
living at the time payments are due the Children under this Agreement.
1.7 "Disability" means any case in which a Participant: (i) is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period of
not less than 12 months; or (ii) is, by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period of
not less than 12 months, receiving income replacement benefits for a
period of not less than 3 months under an accident and health plan
covering employees of the Participant's employer.
1.8 "Code" means the Internal Revenue Code of 1986 as amended from time to
time.
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1.9 "Early Retirement Benefit" means the benefit payable to Executive upon
retirement from service after attainment of Executive's sixtieth (60
th) birthday but prior to his Normal Retirement Date.
1.10 "Early Retirement Date" means the first day of the month coincident
with or next following Executive's termination of employment with the
Association after attainment of age sixty (60).
1.11 "Effective Date" shall be March 1, 2006.
1.12 "Estate" means the Estate of Executive.
1.13 "Interest Factor" means six percent (6%) or such other rate as is
reasonably determined by the Board of Directors from time to time.
1.14 "Normal Retirement Date" means the first day of the month coincident
with or next following Executive's sixty-fifth (65th) birthday.
1.15 "Postponed Retirement Date" means the first day of the month
coincident with or next following Executive's termination of
employment with the Association after his Normal Retirement Date.
1.16 "Separation from Service" shall mean, consistent with Code Section
409A(2)(a)(i), the Executive's death, retirement, or termination of
employment. No Separation from Service shall be deemed to occur due to
military leave, sick leave or other bona fide leave of absence if the
period of such leave does not exceed six months or, if longer, so long
as the Executive's right to reemployment is provided by law or
contract. If the leave exceeds six months and the Executive's right to
reemployment is not provided by law or by contract, then the Executive
shall have a Separation from Service on the first date immediately
following such six-month period. The Executive shall not be treated as
having a Separation from Service if the Executive provides more than
insignificant services for Flatbush Federal Bancorp, Inc. and the
Association following the Executive's actual or purported termination
of employment with Flatbush Federal Bancorp, Inc. and the Association.
Services shall be treated as not being insignificant if such services
are performed at an annual rate that is at least equal to 20 percent
of the services rendered by the Executive for Flatbush Federal
Bancorp, Inc. and the Association, on average, during the immediately
preceding three full calendar years of employment (or if employed less
than three years, such shorter period of employment) and the annual
base compensation for such services is at least equal to 20 percent of
the average base compensation earned during the final three full
calendar years of employment (or if employed less than three years,
such shorter period of employment). Where the Executive continues to
provide services to a previous employer in a capacity other than as an
employee, a Separation from Service will not be deemed to have
occurred if the Executive is providing services at an annual rate that
is 50 percent or more of the services rendered, on average, during the
immediate preceding three full calendar years of employment (or if
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employed less than three years, such lesser period) and the annual
base compensation for such services is 50 percent or more of the
annual base compensation earned during the final three full calendar
years of employment (or if less, such lesser period).
1.17 "Specified Employee" means any Participant who also satisfies the
definition of "key employee" as such term is defined in Code Section
416(i). In the event a Participant is a Specified Employee, no
distribution shall be made to such Participant upon Separation from
Service prior to the date which is six (6) months following Separation
from Service.
1.18 "Spouse" means the individual to whom Executive is legally married at
the time of Executive's death.
1.19 "Supplemental Retirement Income Benefit" means an annual retirement
benefit equal to twenty percent (20%) of Executive's highest average
annual base salary (over the consecutive 36 month period immediately
preceding Executive's termination of employment).
1.20 "Survivor's Benefit" means the benefit provided under Section 2.1 to
Executive's Beneficiary if Executive dies while in active employment
of the Association.
SECTION II
PRE RETIREMENT AND POST RETIREMENT DEATH BENEFITS
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2.1 Death Prior to Termination of Employment. If Executive dies prior to
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termination of employment, Executive's Beneficiary shall be entitled
to the Survivor's Benefit. Such benefit shall be paid monthly in one
hundred eighty (180) equal installments. The survivor's benefit shall
be equal to the Supplemental Retirement Income Benefit under Section
1.19 determined, in the case of a pre-retirement death, as if
Executive retired on his Normal Retirement Date and commenced
receiving benefits at such time. Notwithstanding anything to the
contrary herein, the Survivor Benefit payable hereunder shall not be
greater than the Supplemental Retirement Income Benefit that would
have been payable to Executive at his Normal Retirement Date.
The Survivor's Benefit shall be payable in equal monthly installments
for one hundred eighty (180) months. The first installment shall begin
within thirty (30) days after notification of the date of death of
Executive.
2.2 Death Subsequent to Retirement. In the event of the death of Executive
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while receiving monthly benefits under this Agreement, but prior to
receiving one hundred eighty (180) equal monthly payments, the unpaid
balance of such equal monthly payments shall continue to be paid
monthly to Executive's Beneficiary until the total of one hundred
eighty (180) such payments have been made. In the event Executive dies
following his Normal Retirement Date, but before commencement of any
payments, the Supplemental Retirement Income Benefit shall be paid to
Executive's Beneficiary in one hundred eighty (180) equal monthly
payments commencing within thirty (30) days after the Association is
notified of Executive's death.
SECTION III
SUPPLEMENTAL RETIREMENT INCOME BENEFIT
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AND DISABILITY BENEFIT
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3.1 Normal Retirement Benefit. Upon Executive's retirement coincident with
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or following his Normal Retirement Date, the Association shall
commence payments of the Supplemental Retirement Income Benefit. Such
payments shall commence the first day of the month next following
Executive's actual retirement date and shall be payable monthly
thereafter for as long as Executive shall live, but not less than one
hundred eighty (180) months. In the event Executive is a Specified
Employee, such payments will commence the first day of the seventh
(7th) month next following Executive's Separation from Service, with
the amount of the first payment equaling seven (7) monthly
installments and with the remainder payable monthly thereafter for as
long as Executive shall live, with one hundred seventy-three (173)
monthly payments guaranteed.
3.2 Early Retirement Benefit. Executive shall have the right, if elected
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no later than December 31, 2006, to receive an Early Retirement
-----------------------------------
Benefit provided he shall have attained the age of sixty (60) and
remained in continuous service from the date of this Agreement until
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termination of employment. The Early Retirement Benefit shall be equal
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to the Supplemental Retirement Income Benefit ("SRIB") calculated
under Section 1.19 and reduced by five percent (5%) for each full
twelve month period that the Early Retirement Benefit is received
before Executive's Normal Retirement Date, measured from Executive's
Early Retirement Date and ending the day before his 65th birthday, as
set forth below:
Period Commencing
at Age % of SRIB
------ ---------
60 75%
61 80%
62 85%
63 90%
64 95%
Such payments will commence on the first day of the month following
Executive's Early Retirement Date and shall be payable monthly
thereafter for as long as Executive shall live, but not less than one
hundred eighty (180) months. In the event Executive is a Specified
Employee, such payments will commence the first day of the seventh
(7th) month next following Executive's Early Retirement Date (upon
which the Executive will Separate from Service), with the amount of
the first payment equaling seven (7) monthly installments and with the
remainder payable monthly thereafter for as long as Executive shall
live, but not less than one hundred seventy-three (173) months.
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3.3 Disability. If Executive becomes Disabled prior to reaching his Normal
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Retirement Date, while covered by the provisions of this Agreement,
Executive shall be entitled to a Supplemental Disability Benefit
commencing within thirty (30) days after a determination by the Board
of Directors that the Executive is Disabled. The Supplemental
Disability Benefit shall be equal to the Supplemental Retirement
Income Benefit ("SRIB") calculated under Section 1.19 as if Executive
retired on the date of his termination of employment due to Disability
and reduced by five percent (5%) per year for each full twelve month
period that such Disability occurs prior to Executive's Normal
Retirement Date, but in no event shall Executive's Supplemental
Disability Benefit be less than twenty five percent (25%) of the
Executive's SRIB:
Disability Commencing
at Age % of SRIB
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50 and Under 25%
51 30%
52 35%
53 40%
54 45%
55 50%
56 55%
57 60%
58 65%
59 70%
60 75%
61 80%
62 85%
63 90%
64 95%
In the event Executive dies at any time after termination of
employment due to Disability but prior to commencement or completion
of one hundred eighty (180) monthly payments, the Association shall
pay to Executive's Beneficiary the Supplemental Disability Benefit in
monthly installments over one hundred eighty (180) months or a
continuation of the monthly installments for the remainder of the one
hundred eighty (180) month period.
3.4 Change in Control. In the event of Executive's termination of
employment coincident with or within three (3) years following a
Change in Control, other than due to termination for Cause, Executive
shall be entitled to receive the full Supplemental Retirement Income
Benefit as if Executive had continued in employment with the
Association until he retired following his Normal Retirement Date. At
the election of the Executive, which election must be made no later
than December 31, 2006, the Association, or its successor, shall
commence payment of the Supplemental Retirement Income Benefit either
at the Normal Retirement Date or within thirty (30) days after
Executive's termination of employment. In the event Executive is a
Specified Employee and such payments are made at Separation from
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Service, such payments will not commence prior to the first day of the
seventh (7th) month next following Executive's termination of
employment, if so required by Code Section 409A.
SECTION IV
EXECUTIVE'S RIGHT TO ASSETS
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The rights of Executive, any Beneficiary of Executive, or any other person
claiming through Executive under this Agreement, shall be solely those of an
unsecured general creditor of the Association. Executive, the Beneficiary of
Executive, or any other person claiming through Executive, shall only have the
right to receive from the Association those payments as specified under this
Agreement. Executive agrees that he, his Beneficiary, or any other person
claiming through him shall have no rights or interests whatsoever in any asset
of the Association, including any insurance policies or contracts which the
Association may possess or obtain to informally fund this Agreement. Any asset
used or acquired by the Association in connection with the liabilities it has
assumed under this Agreement, except as expressly provided, shall not be deemed
to be held under any trust for the benefit of Executive or his Beneficiaries,
nor shall it be considered security for the performance of the obligations of
the Association. It shall be, and remain, a general, unpledged, and unrestricted
asset of the Asset of the Association.
SECTION V
RESTRICTIONS UPON FUNDING
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The Association shall have no obligation to set aside, earmark or entrust
any fund or money with which to pay its obligations under this Agreement.
Executive, his Beneficiaries or any successor in interest to him shall be and
remain simply a general creditor of the Association in the same manner as any
other creditor having a general claim for matured and unpaid compensation. The
Association reserves the absolute right, at its sole discretion, to either fund
the obligations undertaken by this Agreement or to refrain from funding the same
and to determine the extent, nature, and method of such informal funding. Should
the Association elect to fund this Agreement, in whole or in part, through the
purchase of life insurance, disability policies or annuities, the Association
reserves the absolute right, in its sole discretion, to terminate such funding
at any time, in whole or in part. At no time shall Executive be deemed to have
any lien nor right, title or interest in or to any specific funding investment
or to any assets of the Association. If the Association elects to invest in a
life insurance, disability or annuity policy upon the life of Executive, then
Executive shall assist the Association by freely submitting to a physical
examination and supplying such additional information necessary to obtain such
insurance or annuities.
SECTION VI
ALIENABILITY AND ASSIGNMENT PROHIBITION
Neither Executive nor any Beneficiary under this Agreement shall have any
power or right to transfer, assign, anticipate, hypothecate, mortgage, commute,
modify or otherwise encumber in advance any of the benefits payable hereunder,
nor shall any of said benefits be subject to seizure for the payment of any
debts, judgments, alimony or separate maintenance owed by Executive or his
Beneficiary, nor be transferable by operation of law in the event of bankruptcy,
8
insolvency or otherwise. In the event Executive or any Beneficiary attempts
assignment, communication, hypothecation, transfer or disposal of the benefits
hereunder, the Association's liabilities shall forthwith cease and terminate.
SECTION VII
TERMINATION OF EMPLOYMENT FOR CAUSE
-----------------------------------
Should Executive be terminated for Cause, his benefits under this Agreement
shall be forfeited and this Agreement shall become null and void.
SECTION VIII
ACT PROVISIONS
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8.1 Named Fiduciary And Administrator. The Association shall be the Named
---------------------------------
Fiduciary and Administrator of this Agreement. As Administrator, the
Association shall be responsible for the management, control and
administration of the Agreement as established herein. The
Administrator may delegate to others certain aspects of the management
and operational responsibilities of the Agreement, including the
employment of advisors and the delegation of ministerial duties to
qualified individuals.
8.2 Claims Procedure And Arbitration. In the event that benefits under
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this Agreement are not paid to Executive (or to his Beneficiary in the
case of Executive's death) and such claimants feel they are entitled
to receive such benefits, then a written claim must be made to the
Administrator named above within thirty (30) days from the date
payments are refused. The Administrator and its Board of Directors
shall review the written claim and, if the claim is denied, in whole
or in part, they shall provide in writing within thirty (30) days of
receipt of such claim their specific reasons for such denial,
reference to the provisions of this Agreement upon which the denial is
based and any additional material or information necessary to perfect
the claim. Such written notice shall further indicate the additional
steps to be taken by claimants if a further review of the claim denial
is desired.
If claimants desire a second review, they shall notify the
Administrator in writing within thirty (30) days of the first claim
denial. Claimants may review the Agreement or any documents relating
thereto and submit any issues, in writing, and comments they may feel
appropriate. In its sole discretion, the Administrator shall then
review the second claim and provide a written decision within thirty
(30) days of receipt of such claim. This decision shall likewise state
the specific reasons for the decision and shall include reference to
specific provisions of the Agreement upon which the decision is based.
If claimants continue to dispute the benefit denial based upon
completed performance of the Agreement or the meaning and effect of
the terms and conditions thereof, then claimants may submit the
dispute to mediation, administered by the American Arbitration
Association ("AAA") (or a mediator selected by the parties) in
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accordance with the AAA's Commercial Mediation Rules. If mediation is
not successful in resolving the dispute, it shall be settled by
arbitration administered by the AAA under its Commercial Arbitration
Rules, and judgment on the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. If it is finally
determined that Executive (or his Beneficiary) is entitled to the
benefits set forth under this Agreement, then all amounts that
Executive (or his Beneficiary) would have received up to the time of
such final determination shall be paid to Executive (or his
Beneficiary) with interest (calculated using the Interest Factor)
within thirty (30) days after such final determination.
Where a dispute arises as to the Association's discharge of Executive
for Cause, such dispute shall likewise be submitted to arbitration as
above described and the parties hereto agree to be bound by the
decision thereunder.
All reasonable legal fees paid or incurred by Executive pursuant to
any dispute or questions of interpretation relating to this Agreement
shall be paid or reimbursed by the Association.
SECTION IX
MISCELLANEOUS
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9.1 No Effect on Employment Rights. Nothing contained herein shall confer
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upon Executive the right to be retained in the service of the
Association nor limit the right of the Association to discharge or
otherwise deal with Executive without regard to the existence of this
Agreement.
9.2 Disclosure. Executive shall receive a copy of his Agreement and the
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Administrator will make available, upon request, a copy of any rules
and regulations that govern this Agreement.
9.3 Governing Law. The Agreement is established under, and will be
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construed according to, the laws of the State of New York, to the
extent that such laws are not preempted by the Act and valid
regulations published thereunder.
9.4 Severability. In the event that any of the provisions of this
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Agreement or portion thereof, are held to be inoperative or invalid by
any court of competent jurisdiction, then: (1) insofar as is
reasonable, effect will be given to the intent manifested in the
provisions held invalid or inoperative, and (2) the validity and
enforceability of the remaining provisions will not be affected
thereby.
9.5 Incapacity of Recipient. In the event Executive is declared
--------------------------
incompetent and a conservator or other person legally charged with the
care of his person or of his estate is appointed, any benefits under
the Agreement to which such Executive is entitled shall be paid to
such conservator or other person legally charged with the care of his
person or his Estate. Except as provided above in this paragraph, when
the Association's Board of Directors in its sole discretion,
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determines that an Executive is unable to manage his financial
affairs, the Board may direct the Association to make distributions to
any person for the benefit of such Executive.
9.6 Unclaimed Benefit. Executive shall keep the Association informed of
------------------
his current address and the current address of his Beneficiaries. The
Association shall not be obligated to search for the whereabouts of
any person. If the location of Executive is not made known to the
Association within three years after the date on which any payment of
Executive's Supplemental Retirement Income Benefit may be made,
payment may be made as though Executive had died at the end of the
three-year period. If, within one additional year after such
three-year period has elapsed, or, within three years after the actual
death of Executive, the Association is unable to locate any
Beneficiary of Executive, then the Association may fully discharge its
obligation by payment to the Estate.
9.7 Limitations on Liability. Notwithstanding any of the preceding
--------------------------
provisions of the Agreement, neither the Association, nor any
individual acting as an employee or agent of the Association or as a
member of the Board of Directors shall be liable to Executive, former
Executive, or any other person for any claim, loss, liability or
expense incurred in connection with the Agreement, other than for
payment of sums provided for in this Agreement.
9.8 Gender. Whenever, in this Agreement, words are used in the masculine
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or neuter gender, they shall be read and construed as in the
masculine, feminine or neuter gender, whenever they should so apply.
9.9 Affect on Other Corporate Benefit Agreements. Nothing contained in
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this Agreement shall affect the right of Executive to participate in,
or be covered by, any qualified or non-qualified pension, profit
sharing, group, bonus or other supplemental compensation or fringe
benefit agreement constituting a part of the Association's existing or
future compensation structure.
9.10 Headings. Headings and sub-headings in this Agreement are inserted for
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reference and convenience only and shall not be deemed a part of this
Agreement.
9.11 Establishment of Rabbi Trust. The Association may, but is not
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obligated to, establish a rabbi trust into which the Association may
contribute assets which shall be held therein, subject to the claims
of the Association's creditors in the event of the Association's
"Insolvency" as defined in the agreement which establishes such rabbi
trust, until the contributed assets are paid to Executives and their
Beneficiaries in such manner and at such times as specified in this
Agreement. In the event a rabbi trust is established, it is the
intention of the Association to make contributions to the rabbi trust
to provide the Association with a source of funds to assist it in
meeting the liabilities of this Agreement. The rabbi trust and any
assets held therein shall conform to the terms of the rabbi trust
agreement, which has been established in conjunction with this
Agreement. To the extent the language in this Agreement is modified by
the language in the rabbi trust agreement, the rabbi trust agreement
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shall supersede this Agreement. Any contributions to the rabbi trust
shall be made during each year of the Agreement in accordance with the
rabbi trust agreement. The amount of such contribution(s) shall be
equal to the full present value of all benefit accruals under this
Agreement, if any, less: (i) previous contributions made on behalf of
Executive to the rabbi trust, and (ii) earnings to date on all such
previous contributions. Notwithstanding anything to the contrary
herein, in the event of a Change in Control, a rabbi trust shall be
established, if not previously established, and the present value of
the full Supplement Retirement Income Benefit, less any amount
previously contributed, shall be contributed to the rabbi trust within
thirty (30) days of the Change in Control.
9.12 Tax Withholding. The Association may withhold from any benefit payable
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under this Agreement all federal, state, city, or other taxes as shall
be required pursuant to any law or governmental regulation then in
effect.
9.13 Tax Compliance. This Plan is adopted following the enactment of Code
--------------
Section 409A and is intended to be construed consistent with the
requirements of that Section, the Treasury regulations and other
guidance issued thereunder. If any provision of the Plan shall be
determined to be inconsistent therewith for any reason, then the Plan
shall be construed, to the maximum extent possible, to give effect to
such provision in a manner that is consistent with Code Section 409A,
and if such construction is not possible, as if such provision had
never been included. In the event that any of the provisions of this
Plan or portion thereof are held to be inoperative or invalid by any
court of competent jurisdiction, then: (1) insofar as is reasonable,
effect will be given to the intent manifested in the provisions held
to be invalid or inoperative, and (2) the invalidity and
enforceability of the remaining provisions will not be affected
thereby.
SECTION X
NON-COMPETITION AFTER NORMAL RETIREMENT
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10.1 Non-Compete Clause. Except as stated in the second paragraph of this
subsection, Executive expressly agrees that, as consideration for the
agreements of the Association contained herein and as a condition to
the performance by the Association of its obligations hereunder,
throughout the entire period beginning at the time of termination of
employment until the final payment is made to Executive, as provided
herein, he will not, without the prior written consent of the
Association, engage in, become interested, directly or indirectly, as
a sole proprietor, as a partner in a partnership, or as a substantial
shareholder in a corporation, nor become associated with, in the
capacity of an employee, director, officer, principal, agent, trustee
or in any other capacity whatsoever, any enterprise conducted in any
city, town or county in which the Association maintains an office at
the time of Executive's termination of employment, which enterprise
is, or may deemed to be, competitive with any business carried on by
the Association as of the date of the termination of Executive's
employment or his retirement.
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In the event Executive's termination follows a Change in Control or
other material change in the Association`s structure or business
activities, Executive shall be entitled to his Supplemental Retirement
Income Benefit, whether or not he enters into an arrangement that is
deemed to be competitive with Flatbush Federal Bancorp, Inc. and/or
the Association.
10.2 Breach. In the event of any breach by Executive of the agreements and
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covenants contained herein, the Board of Directors of the Association
shall direct that any unpaid balance of any payments to Executive
under this Agreement be suspended, and shall thereupon notify
Executive of such suspensions, in writing. Thereupon, if the Board of
Directors of the Association shall determine that said breach by
Executive has continued for a period of six (6) months following
notification of such suspension, all rights of Executive and his
Beneficiaries under this Agreement, including rights to further
payments hereunder, shall thereupon terminate.
SECTION XI
AMENDMENT/REVOCATION
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This Agreement shall not be amended, modified, or revoked at any time, in
whole or part, without the mutual written consent of Executive and the
Association, and such mutual consent shall be required even if Executive is no
longer employed by the Association.
SECTION XII
EXECUTION
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12.1 This Agreement sets forth the entire understanding of the parties
hereto with respect to the transactions contemplated hereby, and any
previous agreements or understandings between the parties hereto
regarding the subject matter hereof are merged into and superseded by
this Agreement.
12.2 This Agreement shall be executed in triplicate, each copy of which,
when so executed and delivered, shall be an original, but all three
copies shall together constitute one and the same instrument.
13
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the day and date first above written.
ATTEST FLATBUSH FEDERAL SAVINGS & LOAN
ASSOCIATION
_________________________________ _______________________________________
Secretary Print name Title
WITNESS
_________________________________ _______________________________________
Executive
EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
BENEFICIARY DESIGNATION
Executive, ▇▇▇▇ ▇▇▇▇▇▇▇, under the terms of a certain Executive
Supplemental Retirement Income Agreement by and between him and FLATBUSH FEDERAL
SAVINGS & LOAN, Brooklyn, New York, dated _________, __, 2006, hereby designates
the following Beneficiary to receive any guaranteed payments or death benefits
under such Agreement, following his death:
PRIMARY BENEFICIARY: ________________________
SECONDARY BENEFICIARY: ________________________
This Beneficiary Designation hereby revokes any prior Beneficiary
Designation which may have been in effect.
Such Beneficiary Designation is revocable.
DATE: __________________, 20__
______________________________ _________________________________
(WITNESS) (EXECUTIVE)
______________________________
(WITNESS)