(ii) You resign your employment with the Bank for Good Reason (as hereinafter defined) within twenty-four months after a Change of Control Event.
Your failure to resign upon the occurrence of a particular event constituting Good Reason hereunder shall not bar you from resigning upon the subsequent occurrence of any other or further event constituting Good Reason, and thereby becoming eligible to receive the Termination Payment, provided that such resignation occurs within twenty-four months after a Change of Control Event.
Regardless of whether a Change of Control Event shall have occurred, you shall not be entitled to any Termination Payment in the event that your employment is terminated by reason of your death, normal retirement or disability.
(ii) The failure by FLIC or the Bank to pay you any portion of your current compensation, or to pay you any portion of an installment of a deferred compensation amount under any deferred compensation program, within fourteen (14) days of the date such compensation is due.
(i) Continuing Outside Directors (as hereinafter defined) no longer constitute at least two-thirds (2/3) of Outside Directors (as hereinafter defined) of FLIC;
(ii) There shall be consummated a merger or consolidation of FLIC, unless at least two-thirds (2/3) of Continuing Outside Directors are to continue to constitute at least two-thirds (2/3) of Continuing Directors;
(iii) At least two-thirds (2/3) of Continuing Outside Directors determine that action taken by stockholders constitutes a Change of Control Event; or
(iv) The Bank shall cease to be a wholly-owned subsidiary of FLIC. |
C. “Continuing Outside Director” shall mean any individual who is not an employee of FLIC or the Bank and who (i) is a director of FLIC as of the date hereof, (ii) prior to election as a director is nominated by at least two-thirds (2/3) of the Continuing Outside Directors, or (iii) following election as a director is designated a Continuing Outside Director by at least two-thirds (2/3) of Continuing Outside Directors.
D. “Outside Director” shall mean an individual who is not an employee of FLIC or the Bank who is a director of FLIC.
8.1 In the event that you shall cease to be employed by the Bank under circumstances entitling you to receive a Termination Payment hereunder, you shall be entitled to the following insurance coverage:
Health Insurance. FLIC shall, at no cost to you, continue to cover you under, or provide you with, family medical and dental coverage subsequent to the date of termination of your employment. Such coverage shall be continued for a period ending on the date which is eighteen (18) months after the termination date and shall be no less favorable than your medical and dental coverage in effect on such termination date; provided, however, that if such termination date is subsequent to the occurrence of a Change of Control Event, the coverage to be provided hereunder shall be no less favorable than the coverage in effect immediately prior to the occurrence of such Change of Control Event.
8.2 Notwithstanding the provisions of the foregoing Section 8.1, the obligation of FLIC to provide the health insurance coverage described therein shall cease, as to each such policy and form of coverage, on the date when another employer makes available to you benefits which are substantially comparable to those described in such sections, regardless of whether the benefits made available by such employer require a contribution on your part.
In the event of your death subsequent to termination of your employment, all payments and benefits due you hereunder shall be paid to your designated beneficiary or beneficiaries or, if you have not designated a beneficiary or beneficiaries, to your estate.
10. | NON-SOLICITATION; CONFIDENTIALITY |
10.1 In consideration of the agreement by FLIC to make a Termination Payment to you under the circumstances described in Section “4” hereof, and regardless of whether you shall actually become entitled to receive a Termination Payment, you agree that, for a period of two (2) years after the termination of your employment by FLIC, you will not (i) on behalf of any banking organization or lender doing business in New York City or in the Counties of Nassau or Suffolk, directly or indirectly solicit the business of any person or entity which shall be a customer of the Bank on the date of such termination or facilitate or assist in the development of any business relationship between any such banking organization or lender and any such customer or (ii) either directly or on behalf of any such banking organization or lender, employ, retain, or solicit the employment or retention of, any person who shall be an employee of the Bank on the date of such termination.
4
10.2 You agree, without limitation as to time, to keep secret and retain in confidence all confidential matters of FLIC and the Bank, whether developed by FLIC, the Bank or you, including, without limitation, “know-how,” trade secrets, customer lists, pricing policies, and operational methods, and not to disclose them to anyone outside of FLIC or the Bank except in the course of performing your duties hereunder or with the express written consent of FLIC.
10.3 If a court of competent jurisdiction determines that any covenant contained herein is unreasonable because of its term or territorial scope, or for any other reason, we agree that such court may reform the condition of such covenant so that it is reasonable under the circumstances and this covenant, as reformed, shall be enforceable.
11.1 Legal Expenses. FLIC shall pay all costs and expenses incurred by you or us, including attorneys’ fees and disbursements (at least monthly in the case of costs and expenses incurred by you), in connection with any legal proceedings (including, but not limited to, arbitration), whether or not instituted by you or us, relating to the interpretation or enforcement of any provision of this Agreement in connection with the termination of your employment. FLIC also agrees to pay prejudgment interest on any money judgment obtained by you as a result of such proceedings, calculated at the prime interest rate of the Bank as in effect from time to time from the date that payment should have been made to you hereunder. Notwithstanding the foregoing, in the event that any legal proceedings referred to above result in a final non-appealable determination that your employment was terminated because of gross and substantial dishonesty on your part, FLIC shall have no further obligation to you under this section and you shall refund to FLIC all amounts previously paid to you pursuant to this section.
11.2 Binding Effect; Successors. This Agreement shall be binding upon, inure to the benefit of and be enforceable by you and us, your heirs and your and our respective legal representatives, successors and assigns. If FLIC shall be merged into or consolidated with another entity, the provisions hereof shall be binding upon and inure to the benefit of the entity surviving such merger or resulting from such consolidation. We shall required any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of FLIC, by agreement in form and substance satisfactory to you, to expressly assume and agree to perform hereunder in the same manner and to the same extent that we would be required to perform hereunder if no such succession had taken place. The provisions hereof shall continue to apply to each subsequent merger, consolidation or transfer of assets of such subsequent employer.
11.3 Notices.Any notices required to be given under this Agreement shall, unless otherwise agreed to by you and us, be in writing and shall be sent by certified mail, return receipt requested, to FLIC at 10 Glen Head Road, Glen Head, New York 11545, Attention: Board of Directors, and to you at the home address which you have designated in writing; or at such other address as you or we may designate in writing, respectively.
11.4 Waiver; Modification. No waiver or modification in whole or in part of this Agreement, or any term or condition hereof, shall be effective against any party unless in writing and duly signed by the party sought to be bound. Any waiver of any breach of any provision hereof or any right or power by any party on one occasion shall not be construed as a waiver of, or a bar to, the exercise of such right or power on any other occasion or as a waiver of any subsequent breach.
11.5 Separability.Any provision of this Agreement which is unenforceable or invalid in any respect in any jurisdiction shall be ineffective in such jurisdiction to the extent that it is unenforceable or invalid without affecting the remaining provisions hereof, which shall continue in full force and effect. The enforceability or invalidity of a provision of the Agreement in one jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
11.6 Controlling Law.This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed therein.
5
If this Agreement is satisfactory to you, would you kindly indicate your acceptance by signing and returning the enclosed copy thereof to the Bank.
THE FIRST OF LONG ISLAND CORPORATION |
By: /s/ Michael N. Vittorio | |
| Michael N. Vittorio, President |
| | |
Accepted and agreed to as
of the 25th day of February, 2005 |
/s/ Brian J. Keeney
6
