EXHIBIT 10.5 - EMPLOYMENT AGREEMENT BETWEEN REGISTRANT AND ARTHUR J. LUPINACCI,
JR.
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THE FIRST OF LONG ISLAND CORPORATION
10 GLEN HEAD ROAD
GLEN HEAD, NEW YORK 11545
July 1, 1999
Mr. Arthur J. Lupinacci, Jr.
Dear Mr. Lupinacci:
This letter employment agreement (the "Agreement") supersedes and replaces
your Special Severance Agreement dated as of November 20, 1998. The terms and
conditions of your employment by The First of Long Island Corporation ("FLIC"),
and its subsidiary, The First National Bank of Long Island (the "Bank"), are as
follows:
1. TERM; RENEWAL
The Initial Term of the Agreement shall run from July 1, 1999 through and
including December 31, 2000, and if not terminated as described below, the
Agreement shall, on July 1 of each year, automatically be extended for an
additional year, resulting in a new one and one-half year term (the "Renewal
Terms"), with such modifications hereto as the parties shall agree in writing;
provided, however, that the Agreement shall not be so extended in the event that
you or FLIC provides written notice of non-extension to the other party no later
than April 30 of any such year. Notwithstanding the foregoing, FLIC may not
provide such notice of non-extension during any period of time in which the
Board of Directors of FLIC is actively negotiating a transaction the
consummation of which would constitute a Change of Control Event (as hereinafter
defined).
2. CAPACITY
(a) You shall be employed in the capacity of Executive Vice President of
FLIC and such other senior executive title or titles of FLIC or the Bank as may
from time to time be determined by the Board of Directors of the Bank and FLIC.
You shall be the senior administrative officer of the Bank, with such duties and
responsibilities as shall be assigned to you by the Chief Executive Officer or
by the Board of Directors of the Bank. You shall be responsible to the Chief
Executive Officer of FLIC and the Bank.
(b) You agree to devote your full time and attention and best efforts to
the faithful and diligent performance of your duties to FLIC and the Bank and
shall serve and further the best interests and enhance the reputation of FLIC
and the Bank to the best of your ability. Nothing herein shall be construed as
preventing you from serving as a member of the board of directors of any
non-profit organization.
3. COMPENSATION
As full compensation for your services, you shall receive the following
from FLIC or, in the discretion of FLIC, it shall cause the following to be paid
or provided by the Bank:
(a) A Base Annual Salary of not less than One Hundred Eighty Five Thousand
Five Hundred Dollars ($185,500.00), payable semimonthly; provided, however, that
no later than January 15 of each year that this Agreement shall remain in
effect, the Chief Executive Officer and the Board of Directors of FLIC shall
review your compensation, without any commitment, to determine whether to
increase your Base Annual Salary hereunder. In the event that the Board of
Directors of FLIC does, from time to time, increase your Base Annual Salary, the
increased amount shall be your Base Annual Salary for all purposes of this
Agreement, and such increased amount shall be the minimum amount payable
hereunder.
(b) Such other benefits as are consistent with the personnel benefits
provided by the Bank and FLIC to its officers and employees.
(c) The use of an appropriate automobile furnished by the Bank.
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(d) The funding and payment of the Bank's obligations under The First
National Bank of Long Island Supplemental Executive Retirement Program through
the related Trust Agreement.
4. TERMINATION PAYMENT.
A. You will be entitled to a payment (the "Termination Payment") equal to
One Hundred Fifty Per Cent (150%) of your then current Base Annual Salary and
FLIC shall make such Termination Payment to you, in the event of, and within ten
(10) days after, the occurrence of any of the following:
(i) Your employment is terminated by the Bank, provided, however, that
you shall not be entitled to receive such payment if such termination is
due to gross and substantial dishonesty on your part;
(ii) You resign your employment with the Bank for any reason during
the period beginning on the thirty-first day after a Change of Control
Event (as hereinafter defined) and ending on the sixtieth day after such
event; or
(iii) You resign your employment with the Bank for Good Reason (as
hereinafter defined) within twenty-four months after a Change of Control
Event.
B. FLIC may elect to discharge its obligation to make the Termination
Payment by causing the Bank, its wholly owned subsidiary, to do so.
5. NON-WAIVER.
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.
6. INELIGIBILITY FOR TERMINATION PAYMENT.
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.
7. DEFINITIONS.
A. "Good Reason" for resignation by you of your employment shall mean the
occurrence (without your express written consent) of any one of the following
acts or omissions to act by FLIC or the Bank:
(i) The assignment to you of any duties materially inconsistent with
the nature and status of your responsibilities immediately prior to a
Change of Control Event, or a substantial adverse alteration in the nature
or status of your responsibilities from those in effect immediately prior
to the Change of Control Event; provided, however, that a redesignation of
your title shall not in and of itself constitute Good Reason if your
overall duties and status within FLIC and the Bank are not substantially
adversely affected.
(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.
B. "Change of Control Event" shall mean the occurrence of any one of the
following:
(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
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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. INSURANCE.
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:
(a) 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 until January 31, 2006, 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.
(b) Additional Insurance. FLIC shall also continue to cover you under,
or provide you with insurance coverage no less favorable than that provided
by, your disability, group term life and any other insurance policies in
effect on the date of termination of your employment for a period ending on
the date which is eighteen (18) months after such termination date.
8.2 Notwithstanding the provisions of the foregoing Sections 8.1(a) and
8.1(b), the obligation of FLIC to provide the health and other 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.
9. DEATH.
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. MISCELLANEOUS.
10.1 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.
10.2 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 require 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.
10.3 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.
10.4 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.
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10.5 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.
10.6 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.
If this Agreement is satisfactory to you, would you kindly indicate your
acceptance by signing and returning the enclosed copy thereof to the Bank.
Very truly yours,
THE FIRST OF LONG ISLAND CORPORATION
By:/s/ J. William Johnson
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J. William Johnson, President
Accepted and agreed to as
of the 1st day of July, 1999
/s/ Arthur J. Lupinacci
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Arthur J. Lupinacci, Jr.
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