AMENDED AND RESTATED EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT FOR JOHN LOTARDO Flatbush Federal Savings & Loan Association Brooklyn, New York 11210 Amended and Restated Effective March 1, 2006
Exhibit
10.7
AMENDED
AND RESTATED
EXECUTIVE
SUPPLEMENTAL RETIREMENT
INCOME
AGREEMENT
FOR
▇▇▇▇
▇▇▇▇▇▇▇
Flatbush
Federal Savings & Loan Association
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Amended
and Restated Effective March 1, 2006
AMENDED
AND RESTATED
This
Amended and Restated 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” updates and
revises the Executive Supplemental Retirement Income Agreement (the “Prior
Agreement”) in order to bring the Agreement into compliance with the final
treasury Regulations issued under Section 409A of the Internal Revenue Code of
1986, as amended (the “Code) in April 2007.
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; and
WHEREAS, Code Section 409A
requires that certain types of deferred compensation arrangements comply with
its terms or subject the recipients of such compensation to current taxes and
penalties; and
WHEREAS, Final regulations
under Code Section 409A that were published in April of 2007, and are generally
applicable for taxable years beginning on or after January 1, 2008, provide
additional rules and clarification for complying with Code Section 409A;
and
WHEREAS, the Association and
the Executive desire to amend and restate the Prior Agreement in order to
conform with the requirements set forth in the final regulations under Code
Section 409A, and for certain other purposes; and
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;
and
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, the 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
When used
herein, the following words shall have the meanings below unless the context
clearly indicates otherwise:
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1.1
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“Act”
means the Employee Retirement Income Security Act of 1974, as it may be
amended from time to time.
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1.2
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“Association”
means Flatbush Federal Savings & Loan Association and any successor
thereto.
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1.3
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“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.
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1.4
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“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.
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1.5
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“Change
in Control” of the Association shall mean (i) a change in ownership of the
Association, as defined under paragraph 1.5.1 below, or (ii) a change in
effective control of the Association, as defined under paragraph 1.5.2
below, or (iii) a change in the ownership of a substantial portion of the
assets of the Association, as defined under paragraph 1.5.3
below:
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1.5.1
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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 Final Treasury Regulation
Section
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2
1.409A-3(i)(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.
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1.5.2
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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 Final
Treasury Regulation Section 1.409A-3(i)(5)(v)(D) 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 30 percent or more of the 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.
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1.5.3
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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 Final Treasury Regulation Section
1.409A-3(i)(5)(v)(C) 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.
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1.5.4
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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.
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1.5.5
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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 Final
Treasury Regulations Section
1.409A-3(i)(5).
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1.6
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“Children”
means Executive’s children, both natural and adopted, then living at the
time payments are due the Children under this
Agreement.
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1.7
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“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
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3
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.
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1.8
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“Code”
means the Internal Revenue Code of 1986 as amended from time to
time.
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1.9
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“Early
Retirement Benefit” means the benefit payable to Executive upon
Separation from Service after attainment of Executive’s
sixtieth (60 th)
birthday but prior to his Normal Retirement
Date.
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1.10
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“Early
Retirement Date” means the first day of the month coincident with or next
following Executive’s Separation from Service with the Association after
attainment of age sixty (60).
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1.11
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“Effective
Date” shall be March 1, 2006.
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1.12
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“Estate”
means the Estate of Executive.
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1.13
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“Interest
Factor” means six percent (6%) or such other rate as is reasonably
determined by the Board of Directors from time to
time.
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1.14
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“Normal
Retirement Date” means the first day of the month coincident with or next
following Executive’s sixty-fifth (65th)
birthday.
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1.15
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“Postponed
Retirement Date” means the first day of the month coincident with or next
following Executive’s Separation from Service with the Association after
his Normal Retirement Date.
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1.16
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“Separation
from Service” shall mean, consistent with Code Section 409A(2)(a)(i), the
Executive’s 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. Whether a Separation from Service has occurred is
determined based on whether the facts and circumstances indicate that the
Association and the Executive reasonably anticipated that no further
services would be performed after a certain date or that the level of bona
fide services the employee would perform after such date (whether as an
employee or as an independent contractor) would permanently decrease to no
more than 49% of the average level of bona fide services performed over
the immediately preceding 36 months (or such lesser period of time in
which the Executive performed services for the
Association). The determination of whether the Executive has
had a
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Separation
from Service shall be made by applying the presumptions set forth in the
Treasury Regulations under Code Section 409A.
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1.17
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“Specified
Employee” means any Participant who also satisfies the definition of “key
employee” as such term is defined in Code Section 416(i)(5) at any time
during the 12-month period ending on a Specified Employee identification
date. 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.
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1.18
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“Spouse”
means the individual to whom Executive is legally married at the time of
Executive’s death.
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1.19
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“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).
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1.20
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“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.
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SECTION
II
PRE RETIREMENT AND POST
RETIREMENT DEATH BENEFITS
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2.1
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Death Prior to
Separation from Service. If Executive dies prior to
Separation from Service, 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.
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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 following the date of death of Executive.
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2.2
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Death Subsequent to
Retirement. In the event of the death of Executive 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 date of Executive’s
death.
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SECTION
III
SUPPLEMENTAL
RETIREMENT INCOME BENEFIT
AND
DISABILITY BENEFIT
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3.1
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Normal Retirement
Benefit. Upon Executive’s Separation from Service
coincident with 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 Separation from Service 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.
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3.2
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Early Retirement
Benefit. Upon the Executive’s Separation from Service
with or following his Early Retirement Date but before his Normal
Retirement Date, the Association shall pay an Early
Retirement Benefit equal 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:
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Period
Commencing
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at Age
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% of
SRIB
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60
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75%
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61
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80%
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62
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85%
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63
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90%
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64
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95%
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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
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Disability. If
Executive becomes Disabled prior to reaching his Normal 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:
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Disability
Commencing
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at Age
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% of
SRIB
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50
and Under
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25%
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51
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30%
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52
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35%
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53
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40%
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54
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45%
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55
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50%
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56
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55%
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57
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60%
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58
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65%
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59
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70%
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60
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75%
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61
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80%
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62
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85%
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63
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90%
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64
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95%
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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.
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3.4
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Change in
Control. In the event of Executive’s Separation from
Service coincident with or within two (2) 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. 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 Separation from Service. In the event
Executive is a Specified Employee, such payments will not commence prior
to the first day of the seventh (7th)
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month
next following Executive’s termination of employment, if so required by
Code Section 409A.
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SECTION
IV
EXECUTIVE’S
RIGHT TO ASSETS
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
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, 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.
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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
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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.
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8.2
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Claims Procedure And
Arbitration. In the event that benefits under 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.
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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 accordance with the AAA’s Commercial Mediation
Rules. If mediation is not
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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
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No Effect on
Employment Rights. Nothing contained herein shall confer
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.
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9.2
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Disclosure. Executive
shall receive a copy of his Agreement and the Administrator will make
available, upon request, a copy of any rules and regulations that govern
this Agreement.
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9.3
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Governing
Law. The Agreement is established under, and will be
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.
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9.4
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Severability. In
the event that any of the provisions of this 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.
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9.5
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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, 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.
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9.6
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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.
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9.7
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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.
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9.8
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Gender. Whenever,
in this Agreement, words are used in the masculine or neuter gender, they
shall be read and construed as in the masculine, feminine or neuter
gender, whenever they should so
apply.
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9.9
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Affect on Other
Corporate Benefit Agreements. Nothing contained in 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.
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9.10
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Headings. Headings
and sub-headings in this Agreement are inserted for reference and
convenience only and shall not be deemed a part of this
Agreement.
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9.11
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Establishment of Rabbi
Trust. The Association may, but is not 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
shall
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11
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.
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9.12
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Tax
Withholding. Any distribution under this Agreement shall
be reduced by the amount of any taxes required to be withheld from such
distribution. This Agreement shall permit the acceleration of
the time or schedule of a payment to pay employment related taxes as
permitted under Treasury regulation Section 1.409A-3(j) or to pay any
taxes that may become due at any time that the arrangement fails to meet
the requirements of Code Section 409A and the regulations and other
guidance promulgated thereunder. In the latter case, such
payments shall not exceed the amount required to be included in income as
the result of the failure to comply with the requirements of Code Section
409A.
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9.13
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Tax
Compliance. This Agreement 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 Agreement
shall be determined to be inconsistent therewith for any reason, then the
Agreement 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 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 to be
invalid or inoperative, and (2) the invalidity and enforceability of the
remaining provisions will not be affected
thereby.
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9.14
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Acceleration of
Payments. Except as specifically permitted herein or in
other sections of this Agreement, no acceleration of the time or schedule
of any payment may be made hereunder. Notwithstanding the
foregoing, payments may be accelerated hereunder by the Association, in
accordance with the provisions of Treasury Regulation Section
1.409A-3(j)(4) and any subsequent guidance issued by the United States
Treasury Department. Accordingly, payments may be accelerated,
in accordance with requirements and conditions of the Treasury Regulations
(or subsequent guidance) in the following circumstances: (i) as a result
of certain domestic relations orders; (ii) in compliance with ethics
agreements with the Federal government; (iii) in compliance with ethics
laws or conflicts of interest laws; (iv) in limited cash-outs (but not in
excess of the limit under Code Section 402(g)(1)(B)); (v) in the case of
certain distributions to avoid a non-allocation year under
Code
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12
Section
409(p); (vi) to apply certain offsets in satisfaction of a debt of the Executive
to the Association; (vii) in satisfaction of certain bona fide disputes between
the Executive and the Association; or (viii) for any
SECTION
X
NON-COMPETITION
AFTER NORMAL RETIREMENT
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10.1
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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.
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10.2
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Breach. In
the event of any breach by Executive of the agreements and 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.
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SECTION
XI
AMENDMENT/REVOCATION
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11.1
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Amendment. This
Agreement shall not be amended or modified at any time 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.
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11.2
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Revocation. Subject
to the requirements of Code Section 409A, in the event of complete
termination of the Agreement, the Agreement shall cease to operate and
the
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13
Bank
shall pay out to the Executive his benefit as if the Executive had Separated
from Service as of the effective date of the complete termination; provided,
however, in the event of a termination of the Agreement pursuant to Section
11.2(b) below, the Executive will be entitled to his full Supplemental
Retirement Income Benefit in accordance with Section 3.4 of the
Agreement. Such complete termination of the Agreement shall occur
only under the following circumstances and conditions:
(a) The
Administrator may terminate the Agreement within 12 months of a corporate
dissolution taxed under Code Section 331, or with approval of a bankruptcy court
pursuant to 11 U.S.C. §503(b)(1)(A), provided that the amounts deferred under
the Agreement are included in the Executive’s gross income in the latest of (i)
the calendar year in which the Agreement terminates; (ii) the calendar year in
which the amount is no longer subject to a substantial risk of forfeiture; or
(iii) the first calendar year in which the payment is administratively
practicable.
(b) The
Board may terminate the Agreement within the 30 days preceding a Change in
Control (but not following a Change in Control), provided that the Agreement
shall only be treated as terminated if all substantially similar arrangements
sponsored by the Association are terminated so that the Executive and all
participants under substantially similar arrangements are required to receive
all amounts of compensation deferred under the terminated arrangements within 12
months of the date of the termination of the arrangements.
(c) The
Board may terminate the Agreement provided that (i) the termination and
liquidation does not occur proximate to a downturn in the financial health of
the Association, (ii) all arrangements sponsored by the Association that would
be aggregated with this Agreement under Treasury Regulations Section 1.409A-1(c)
if the Executive covered by this Agreement was also covered by any of those
other arrangements are also terminated; (iii) no payments other than payments
that would be payable under the terms of the arrangement if the termination had
not occurred are made within 12 months of the termination of the arrangement;
(iv) all payments are made within 24 months of the termination of the
arrangements; and (v) the Association does not adopt a new arrangement that
would be aggregated with any terminated arrangement under Treasury Regulations
Section 1.409A-1(c) if the Executive participated in both arrangements, at any
time within three years following the date of termination of the
arrangement.
SECTION
XII
EXECUTION
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12.1
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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.
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12.2
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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.
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IN WITNESS WHEREOF, the
parties have caused this Agreement to be executed on the day and date
first above written.
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ATTEST
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FLATBUSH
FEDERAL SAVINGS & LOAN ASSOCIATION
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/s/
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇
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Secretary
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Print
name Title
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▇▇▇▇▇
▇. ▇▇▇▇, President
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WITNESS
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/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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/s/
▇▇▇▇ ▇▇▇▇▇▇▇
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Executive
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15
AMENDED
AND RESTATED
BENEFICIARY
DESIGNATION
Executive,
▇▇▇▇ ▇▇▇▇▇▇▇, under the terms of a certain Amended and Restated Executive
Supplemental Retirement Income Agreement by and between him and FLATBUSH FEDERAL
SAVINGS & LOAN, Brooklyn, New York, dated _________, __, 2008, hereby
designates the following Beneficiary to receive any guaranteed payments or death
benefits under such Agreement, following his death:
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PRIMARY
BENEFICIARY:
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________________________
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SECONDARY
BENEFICIARY:
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________________________
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This
Beneficiary Designation hereby revokes any prior Beneficiary Designation which
may have been in effect.
Such
Beneficiary Designation is revocable.
DATE:
__________________, 20__
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(WITNESS)
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(EXECUTIVE)
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(WITNESS)
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