Exhibit 10.5 Amended and Restated Salary and Benefits Continuation
Agreement between Financial Bancorp, Inc., Financial Federal
Savings Bank and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
AMENDED AND RESTATED
FINANCIAL FEDERAL SAVINGS BANK
SALARY AND BENEFITS CONTINUATION AGREEMENT
FOR ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
This Agreement is made effective as of February 18, 1997 by and among
Financial Federal Savings Bank (the "Bank"), a federally chartered savings
institution, Financial Bancorp, Inc. (the "Holding Company"), a corporation
organized under the laws of Delaware, with both their principal administrative
offices located at ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, and ▇▇▇▇▇
▇▇▇▇▇▇▇▇ (the "Executive").
WHEREAS, both the Bank and the Holding Company respectively have retained
Executive as President and Chief Executive Officer; and
WHEREAS, the Bank and the Holding Company previously entered into an
agreement with Executive dated September 24, 1996 provide Executive with salary
continuation and continuation of other benefits enumerated therein in the event
of a change in control of either organization (the "Prior Agreement"); and
WHEREAS, the Bank and the Holding Company, and the Executive desire to
restructure certain terms of the Prior Agreement and otherwise to amend and
restate the Prior Agreement in its entirely as set forth in this Agreement:
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and upon the terms and conditions hereinafter provided the parties hereby agree
as follows:
1. Position and Responsibility.
During the period of employment hereunder, Executive agrees to serve as
President and Chief Executive Officer of both the Bank and the Holding Company.
Executive shall render administrative and management services to each entity
such as are customarily performed by persons
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in a similar executive capacity. Executive also agrees to serve, if elected, as
an Officer and/or Director of any subsidiary of the Bank or the Holding Company.
2. Chance in Control.
In the event of a change in control of either the Bank or the Holding
Company ("Change in Control") occurs, then subject to the terms and conditions
of this Agreement, Executive shall be entitled to the payments and benefits set
forth in Sections 3. and 4. of this Agreement. For purposes of this Agreement a
Change in Control of the Bank or the Holding Company shall be 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 Bank or the Holding Company within the
meaning of the Home Owner's Loan Act of 1933, as amended, and the Rules and
Regulations promulgated by the Office of Thrift Supervision ("OTS") (or its
predecessor agency), as in effect on the date hereof (provided that in applying
the definition of change in control as set forth under the rules and regulations
of the OTS, the Board shall substitute its judgment for that of the OTS); 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 securities of
the Bank or the Holding Company representing 20% or more of the combined voting
power of the Bank's or the Holding Company's outstanding securities except for
any securities of the Bank purchased by the Holding Company in connection with
the conversion of the Bank to the stock form and any securities purchased by any
tax qualified employee benefit plans of the Bank; 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
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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 the same Nominating Committee serving under an
Incumbent Board, shall be, for purposes of this clause; (b) considered as though
he were a member of the Incumbent Board; or (c) a plan for reorganization,
merger, consolidation, sale of all or substantially all the assets of the Bank
or the Holding Company or similar transaction has been approved by the Incumbent
Board and the shareholders, or otherwise occurs upon which the Board so notifies
the OTS of such occurrence, and in which the Bank or Holding Company is not the
resulting entity; or (d) a proxy statement soliciting proxies from shareholders
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 Bank or similar transaction
with one or more corporations as a result of which the outstanding shares of the
class of securities then subject to the plan or transaction are exchanged for or
converted into cash or property or securities not issued by the Bank or the
Holding Company shall be distributed; or (e) a tender offer is made for 20% or
more of the voting securities of the Bank or the Holding Company.
3. Salary Continuation Payments.
In the event a Change in Control of either the Bank or the Holding Company
occurs at any time after the date of this Agreement, Executive shall receive
payment equal to two (2x) times his then current annual base salary made to him
in a single sum payment (subject to applicable withholding) on the date of the
Change in Control, without discount for early payment. Executive shall have no
duty to mitigate the amount of the payment or other benefits received hereunder,
it being agreed and understood that Executive's acceptance of other employment
shall not reduce the obligation of the Bank or the Holding Company hereunder.
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4. Medical and Other Benefits.
In addition to any statutory right, if applicable, that Executive may have
with respect to the continuation of medical or other benefits, the Bank and the
Holding Company shall continue to provide Executive with life, medical, dental
and disability coverage substantially identical to the coverage maintained by
the Bank or the Holding Company immediately prior to the Change in Control for
the two (2) year period immediately following the Change in Control.
5. Source of Payments.
All payments to be made and benefits to be provided in this Agreement shall
be timely paid in cash or check from the general funds of the Bank and provided
by the Bank. 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 Bank are not timely paid or provided by
the Bank for any reason, such amounts and benefits shall be paid or provided by
the Holding Company. It is agreed and understood that the Executive is not
entitled to duplicate payments from both the Bank and the Holding Company.
6. Entire Agreement.
(a) This Agreement contains the entire understanding between the parties
hereto and supersedes the Prior Agreement and any other prior employment
agreement between the Bank or any predecessor of the Bank and Executive, except
that this Agreement shall not affect or operate to reduce any benefit or
compensation inuring to Executive of a kind elsewhere provided. No provision of
this Agreement shall be interpreted to mean that Executive is subject to
receiving fewer benefits than those available to him without reference to this
Agreement.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Bank and the Holding Company and their respective successors
and assigns.
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7. 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.
8. Termination of Employment.
The Bank may terminate Executive's employment at any time. Executive shall
only be entitled to the payments and benefits hereunder in the event a Change in
Control occurs prior to a termination of Employment.
9. Required Provisions.
The following provisions are included for the purposes of complying with
various laws, rules and regulations applicable to the Bank and, in the event of
a conflict between a Required Provision and another provision of this Agreement,
the Required Provision shall supersede such other provision and be applied to
the extent required by the law, rule or regulation applicable to the Bank.
(a) If Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
ss.1818(e)(3) or (g)(1), the Bank's obligations under this contract shall be
suspended as of the date of service, unless stayed by appropriate proceedings.
If the charges in the notice are dismissed, the Bank shall (i) pay Executive all
of the compensation withheld
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while their contract obligations were suspended and (ii) reinstate any of the
obligations which were suspended.
(b) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C.
ss.1818(e)(4) or (g)(1), all obligations of the Bank under this contract shall
terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
(c) If the Bank is in default as defined in Section 3(x)(1) of the Federal
Deposit Insurance Act, 12 U.S.C. ss.1813(x)(1) all obligations of the Bank under
this contract shall terminate as of the date of default, but this paragraph
shall not affect any vested rights of the contracting parties.
(d) All obligations of the Bank under this contract shall be terminated,
except to the extent determined that continuation of the contract is necessary
for the continued operation of the institution, (i) by the Director of the OTS
(or his designee), the FDIC or the Resolution Trust Corporation, at the time the
FDIC enters into an agreement to provide assistance to or on behalf of the Bank
under the authority contained in Section 13(c) of the Federal Deposit Insurance
Act, 12 U.S.C. ss.1823(c); or (ii) by the Director of the OTS (or his designee)
at the time the Director (or his designee) approves a supervisory merger to
resolve problems related to the operations of the Bank or when the Bank is
determined by the Director to be in an unsafe or unsound condition. Any rights
of the parties that have already vested, however, shall not be affected by such
action.
(e) Any payments made to Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with Section 18(k) of
the Federal Deposit Insurance Act, 12 U.S.C. ss.1828(k) and any rules and
regulations promulgated thereunder.
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(f) In no event shall the aggregate dollar amount of the compensation and
benefits, if applicable, payable to the Executive under Sections 3. and 4.
hereof constituting "parachute payments" within the meaning of Section
280G(b)(2) of the Internal Revenue Code of 1986, as amended, exceed three times
the Executive's average annual total compensation for the last five consecutive
calendar years ending prior to his termination of employment with the Bank (or
his entire period of employment with the Bank if less than five calendar years).
10. 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.
11. 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.
12. Governing Law.
The validity, interpretation, performance and enforcement of this Agreement
shall be governed by the laws of the State of New York, but only to the extent
not superseded by federal law.
13. Arbitration.
Any dispute or controversy arising 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 Executive within fifty (50) miles
from the location of the Bank, 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.
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14. Payment of Costs and Legal Fees.
All reasonable costs and legal fees paid or incurred by Executive pursuant
to any dispute or question of interpretation relating to this Agreement shall be
paid or reimbursed by the Bank if Executive is successful on the merits pursuant
to a legal judgment, arbitration or settlement.
15. Successor to the Bank.
The Bank 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 Bank's
obligations under this Agreement, in the same manner and to the same extent that
the Bank would be required to perform if no such succession or assignment had
taken place.
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IN WITNESS WHEREOF, Financial Federal Savings Bank and Financial Bancorp,
Inc. have caused this Agreement to be executed by their duly authorized
director, and Executive has signed this Agreement, on the 16th day of April
1997.
ATTEST: FINANCIAL FEDERAL SAVINGS BANK
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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ATTEST: FINANCIAL BANCORP, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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WITNESS:
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