QUEENS COUNTY BANCORP, INC.
EMPLOYMENT AGREEMENT
AGREEMENT, by and between Queens County Bancorp, Inc. (the "Holding
Company"), a corporation organized under the laws of Delaware, with its
principal administrative office at 38-25 Main Street, Flushing, New York, and
William J. Jennings (the "Executive"), made June 27, 2000. Any reference to
"Bank" herein shall mean Queens County Savings Bank or any successor thereto.
WHEREAS, Haven Bancorp, Inc., ("Haven"), a Delaware corporation and the
Holding Company are entering into an Agreement and Plan of Merger of even date
herewith (the "Merger Agreement"), pursuant to which Haven will merge with and
into the Holding Company (the "Merger") with the Holding Company being the
surviving corporation, and pursuant to which Columbia Federal Savings Bank ("CFS
Bank"), a wholly owned subsidiary of Haven, shall become a wholly-owned
subsidiary of the Holding Company and a sister company of the Bank;
WHEREAS, the Executive and the Haven are parties to a change in control
agreement dated as of June 23, 1999, as amended February 15, 200,0 and the
Executive and CFS Bank are parties to a change in control agreement dated as of
June 23, 1999, as amended February 15, 2000 (together, the "Prior Agreements");
WHEREAS, the Holding Company has determined that it is in the best
interests of the company and its shareholders to provide for the continuing
availability to the Holding Company and the Bank of the Executive's services and
expertise following the "Effective Time" as such term is defined in the Merger
Agreement, all on the terms and conditions set forth below;
WHEREAS, the Holding Company wishes to assure itself of the services of
Executive for the period provided in this Agreement; and
WHEREAS, the Executive is willing to serve in the employ of the Holding
Company on a full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. EFFECTIVENESS; EFFECT OF ACTION UNDER PRIOR AGREEMENTS.
This Agreement shall become effective at the Effective Time, provided the
Executive is employed by the Company on that date. Following the Effective Time,
the Prior Agreements shall remain in effect until the date twelve months from
the Effective Time. After such date, the Prior Agreements shall terminate and
become null and void.
Notwithstanding any provision herein to the contrary, to the extent that
payments and benefits are paid to or received by the Executive under either of
the Prior Agreements, the amount of such payments and benefits paid under such
Prior Agreement will be subtracted from any amount due simultaneously to the
Executive under any provisions of this Agreement in connection with Executive's
termination of employment.
The parties agree that the Prior Agreements are amended as follows
effective as of the Effective Time: (i) to provide that Executive shall be
entitled to severance pay following a Change in Control by reason of his
voluntary termination of employment only if such voluntary termination of
employment occurs during the nine month period beginning three months after the
Effective Time; and (ii) to delete any provision entitling the Executive to any
tax indemnification for excise taxes imposed under Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code").
2. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, Executive agrees to serve as
Executive Vice President and a Director of the Holding Company, and as Executive
Vice President and a Director of the Bank. The Executive shall render
administrative and management services to the Holding Company such as are
customarily performed by persons in a similar executive capacity. Failure to
reelect Executive as Executive Vice President of the Holding Company or failure
to reelect Executive as Executive Vice President or a Director of the Bank or
President or a Director of CFS Bank or failure of the Holding Company to
re-nominate or of its shareholders to re-elect the Executive as a Director of
the Holding Company without the consent of the Executive shall constitute a
breach of this Agreement.
3. TERMS.
(a) The period of Executive's employment under this Agreement shall be
deemed to have commenced as of the Effective Time and shall continue for a
period of thirty-six (36) full calendar months thereafter. Commencing with the
Effective Time, the term of this Agreement shall be extended for one day each
day until such time as the Board of the Holding Company or the Executive elects
not to extend the term of the Agreement further by giving written notice to the
other party in accordance with Section 10 of this Agreement, in which case the
term of this Agreement shall be fixed and shall end on the third anniversary of
the date of such written notice; provided, that in any event, the term of this
Agreement shall end on the last day of the month in which the Executive attains
the age of 65. The Board will review the Agreement and the Executive's
performance annually for purposes of determining whether to give notice not to
extend the Agreement, and the results thereof shall be included in the minutes
of the Board's meeting.
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(b) During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the Holding Company and participation in community
and civic organizations; provided, however, that, with the approval of the
Board, as evidenced by a resolution of such Board, from time to time, Executive
may serve, or continue to serve, on the boards of directors of, and hold any
other offices or positions in, companies or organizations, which, in such
Board's judgment, will not present any conflict of interest with the Holding
Company, or materially affect the performance of Executive's duties pursuant to
this Agreement.
(c) Notwithstanding anything herein contained to the contrary: (i)
Executive's employment with the Holding Company may be terminated by the Holding
Company or Executive during the term of this Agreement, subject to the terms and
conditions of this Agreement; and (ii) nothing in this Agreement shall mandate
or prohibit a continuation of Executive's employment following the expiration of
the term of this Agreement upon such terms and conditions as the Board and
Executive may mutually agree.
(d) Upon the termination of Executive's employment with the Holding
Company, the daily extensions provided pursuant to Section 3(a), shall cease (if
such extensions have not previously ceased), and, if such termination is under
circumstances described in Section 5(a), the term "remaining term of the
Agreement" in Section 5(b) shall mean the period of time commencing from the
date of such termination and ending on the last day of the employment period
computed with reference to all extensions prior to such termination.
(e) In the event that Executive's duties and responsibilities with respect
to the Bank are temporarily or permanently terminated pursuant to Section 9 of
the Employment Agreement dated June 27, 2000 between Executive and CFS Bank
("Bank Agreement") and the course of conduct upon which such termination is
based would not constitute grounds for Termination for Cause under Section 9 of
this Agreement then Executive shall, to the extent practicable, assume such
duties and responsibilities formerly performed at the Bank as part of his duties
and responsibilities as Executive Vice President of the Holding Company. Nothing
in this provision shall be interpreted as restricting the Holding Company's
right to remove Executive for Cause in accordance with Section 9 of this
Agreement.
4. COMPENSATION AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Section 2. The Holding
Company shall pay Executive as compensation a salary of not less than $400,000
per year ("Base Salary"). Base Salary shall include any amounts of compensation
deferred by Executive under a qualified
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plan maintained by the Bank. Such Base Salary shall be payable bi-weekly. During
the period of this Agreement, Executive's Base Salary shall be reviewed at least
annually; the first such review will be made no later than one year from the
date of this Agreement. Such review shall be conducted by the Salary and
Personnel Committee designated by the Board, and the Board may increase
Executive's Base Salary. Following any increase, the rate of base salary as
increased shall become the "Base Salary" for purposes of this Agreement. In no
event shall Executive's annual rate of salary under this Agreement in effect at
a particular time be reduced without his prior written consent. In addition to
the Base Salary provided in this Section 4(a), the Holding Company shall also
provide Executive at no cost to Executive with all such other benefits as are
provided uniformly to permanent full-time employees of the Holding Company and
the Bank.
(b) The Holding Company will provide Executive with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from immediately prior
to the beginning of the term of this Agreement, and the Holding Company will
not, without Executive's prior written consent, make any changes in such plans,
arrangements or perquisites which would adversely affect Executive's rights or
benefits thereunder, provided, however, that the Holding Company may make such
changes to such plans, agreements or perquisites generally provided on a
nondiscriminatory basis to all employees, without the Executive's consent.
Without limiting the generality of the foregoing provisions of this Subsection
(b), Executive will be entitled to participate in or receive benefits under any
employee benefit plans including, but not limited to, retirement plans,
supplemental retirement plans, pension plans, profit-sharing plans,
health-and-accident plans, medical coverage or any other employee benefit plan
or arrangement made available by the Holding Company in the future to its senior
executives and key management employees, subject to and on a basis consistent
with the terms, conditions and overall administration of such plans and
arrangements. Executive will be entitled to incentive compensation and bonuses
as provided in any plan of the Holding Company in which Executive is eligible to
participate. Nothing paid to the Executive under any such plan or arrangement
will be deemed to be in lieu of other compensation to which the Executive is
entitled under this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of this 4
and other compensation provided for by paragraph (b) of this Section 4, the
Holding Company shall pay or reimburse Executive for all reasonable travel and
other reasonable expenses incurred by Executive performing his obligations under
this Agreement and may provide such additional compensation in such form and
such amounts as the Board may from time to time determine.
(d) In the event that Executive assumes additional duties and
responsibilities pursuant to Section 3(c) of this Agreement by reason of one of
the circumstances contained in Section 3(c) of this Agreement, and the Executive
receives or will receive less than the full amount of compensation and benefits
formerly entitled to him under the Bank Agreement,
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the Holding Company shall assume the obligation to provide Executive with his
compensation and benefits in accordance with the Bank Agreement less any
compensation and benefits received from the Bank, subject to the terms and
conditions of this Agreement including the termination for Cause provisions in
Section 9.
5. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
The provisions of this Section shall in all respects be subject to the
terms and conditions stated in Section 9.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the Bank or the Holding Company of Executive's full-time
employment hereunder for any reason other than a Change in Control, as defined
in Section 6(a) hereof; for Disability, as defined in Section 7 hereof; upon
Retirement, as defined in Section 8 hereof; or for Cause, as defined in Section
9 hereof; (ii) Executive's resignation from the Holding Company's employ, upon
any (A) failure to elect or reelect or to appoint or reappoint Executive as
Executive Vice President, (B) unless consented to by the Executive, a material
change in Executive's function, duties, or responsibilities, which change would
cause Executive's position to become one of lesser responsibility, importance,
or scope from the position and attributes thereof described in Section 2, above,
(and any such material adverse change shall be deemed a continuing breach of
this Agreement), (C) a relocation of Executive's principal place of employment
by more than 30 miles from its location at the effective date of this Agreement,
or a material reduction in the benefits and perquisites to the Executive from
those being provided as of the effective date of this Agreement, (D) liquidation
or dissolution of the Bank or Holding Company, or (E) material breach of this
Agreement by the Holding Company. Upon the occurrence of any event described in
clauses (A), (B), (C), (D) or (E), above, Executive shall have the right to
elect to terminate his employment under this Agreement by resignation upon not
less than thirty (30) days prior written notice given within a reasonable period
of time not to exceed, except in case of a continuing breach, four calendar
months after the event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, the Holding Company
shall be obligated to pay Executive, or, in the event of his subsequent death,
his beneficiary or beneficiaries, or his estate, as the case may be, as
severance pay or liquidated damages, or both, a sum equal to the payments due
for the remaining term of the Agreement including Base Salary, bonuses and any
other cash or deferred compensation paid or to be paid to the executive for such
years, and the amount of any benefits received or to be received by the
Executive or contributions made or to be made on behalf of the Executive
pursuant to any employee benefit plans maintained by the Bank during such years.
At the election of the Executive, which election is to be made within thirty
(30) days of the Date of Termination,
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such payments shall be made in a lump sum or paid monthly during the remaining
term of the agreement following the Executive's termination. In the event that
no election is made, payment to the Executive will be made on a monthly basis
during the remaining term of the Agreement. Such payments shall not be reduced
in the event the Executive obtains other employment following termination of
employment.
(c) Upon the occurrence of an Event of Termination, the Holding Company
will cause to be continued life, medical, dental and disability coverage
substantially identical to the coverage maintained by the Bank or the Holding
Company for Executive prior to his termination. Such coverage shall cease upon
the expiration of the remaining term of this Agreement.
(d) In the event that the Executive is receiving monthly payments
pursuant to Section 5(b) hereof, on an annual basis, thereafter, between the
dates of January 1 and January 31 of each year, Executive shall elect whether,
the balance of the amount payable under the Agreement at that time shall be
paid in a lump sum or on a pro rata basis. Such election shall be irrevocable
for the year for which such election is made.
6. CHANGE IN CONTROL.
(a) No benefit shall be payable under this Section 6 unless there shall
have been a Change in Control of the Bank or the Holding Company as set forth
below. For purposes of this Agreement, a "Change in Control" of the Bank or
Holding Company shall mean an event of a nature that: (i) would be required to
be reported in response to Item l(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 1934 (the "Exchange Act"); or (ii) results in a Change in
Control of the Bank or the Holding Company within the meaning of the Change in
Bank Control Act and the Rules and Regulations promulgated by the Federal
Deposit Insurance Corporation ("FDIC") at 12 C.F.R. Section 303.4(a) with
respect to the Bank and the Board of Governors of the Federal Reserve System
("FRB") at 12 C.F.R. Section 225.41(b) with respect to the Holding Company, as
in effect on the date hereof; or (iii) results in a transaction requiring prior
FRB approval under the Bank Holding Company Act of 1956 and the regulations
promulgated thereunder by the FRB at 12 C.F.R. Section 225.11, as in effect on
the date hereof except for the Holding Company's acquisition of the Bank; or
(iv) 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 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 the Bank's employee stock
ownership plan and trust; 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
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becoming a director subsequent to the date hereof whose election was 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 of reorganization, merger, consolidation,
sale of all or substantially all the assets of the Bank or the Holding Company
or similar transaction occurs in which the Bank or Holding Company is not the
resulting entity; or (D) a proxy statement shall be distributed soliciting
proxies from stockholders 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 a similar transaction with one or more corporations as a result of which the
outstanding shares of the class of securities then subject to such plan or
transaction are exchanged for or converted into cash or property or securities
not issued by the Bank or the Holding Company; or (E) a tender offer is made for
20% or more of the voting securities of the Bank or Holding Company then
outstanding.
(b) If any of the events described in Section 6(a) hereof constituting a
Change in Control have occurred or the Board has determined that a Change in
Control has occurred, notwithstanding the provisions of Section 3(a), the term
of this Agreement shall be deemed to have commenced as of the date of the Change
in Control and shall continue for a period of thirty-six (36) full calendar
months thereafter. Commencing on the date of the Change in Control, the term of
this Agreement shall be extended for one day each day.
(c) If any of the events described in Section 6(a) hereof constituting a
Change in Control have occurred or the Board has determined that a Change in
Control has occurred, Executive shall be entitled to the benefits provided in
paragraphs (d), (e), (f) and (g) of this Section 6 upon his subsequent
termination of employment at any time during the term of this Agreement
(regardless of whether such termination results from his dismissal or his
resignation at any time during the term of this Agreement following any
demotion, loss of title, office or significant authority or responsibility,
reduction in the annual compensation or benefits or relocation of his principal
place of employment by more than 30 miles from its location immediately prior to
the change in control), unless such termination is because of his death, or
termination for Cause.
(d) Upon the occurrence of a Change in Control followed by the Executive's
termination of employment, the Holding Company shall pay Executive, or in the
event of his subsequent death, his beneficiary or beneficiaries, or his estate,
as the case may be, as severance pay or liquidated damages, or both, a sum equal
to the greater of the payments due for the remaining term of the Agreement or
three (3) times the average of the three (3) preceding years' Base Salary,
including bonuses and any other cash or deferred compensation paid or to be paid
to the Executive during such years, and the amount of any contributions made or
to be made to any employee benefit plans, on behalf of the Executive, maintained
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by the Bank or the Holding Company during such years except to the extent such
benefits are otherwise payable to the Executive under the terms of such plans
upon a Change in Control. For purposes of determining the benefit due under this
Section 6(d), when calculating the payments due for the remaining term of this
Agreement, it shall be assumed that for each year of the remaining term of the
Agreement, the Executive will receive (i) an annual increase in Base Salary
equal to the average increase received in the preceding three years, (ii) the
maximum bonus payable, and (iii) the maximum contribution by or on behalf of the
Executive with respect to any employee benefit plans maintained by the Bank. At
the election of the Executive, which election is to be made within thirty (30)
days of the Date of Termination following a Change in Control, such payment may
be made in a lump sum or paid in equal monthly installments during the
thirty-six (36) months following the Executive's termination. In the event that
no election is made, payment to the Executive will be made on a monthly basis
during the remaining term of the Agreement.
(e) Upon the occurrence of a Change in Control followed by the Executive's
termination of employment, the Holding Company will cause to be continued life,
medical, dental and disability coverage substantially identical to the coverage
maintained by the Bank for Executive prior to his severance. Such coverage and
payments shall cease upon the expiration of thirty-six (36) months.
(f) In the event that the Executive is receiving monthly payments pursuant
to Section 6(d) hereof, on an annual basis, thereafter, between the dates of
January 1 and January 31 of each year, Executive shall elect whether the balance
of the amount payable under the Agreement at that time shall be paid in a lump
sum or on a pro rata basis pursuant to such section. Such election shall be
irrevocable for the year for which such election is made.
(g) In each calendar year that Executive is entitled to receive payments or
benefits under the provisions of the Employment Agreement with the Bank and this
Employment Agreement, the Holding Company shall determine if an excess parachute
payment (as defined in Section 4999 of the Internal Revenue Code of 1986, as
amended, and any successor provision thereto, (the "Code")) exists. Such
determination shall be made after taking any reductions permitted pursuant to
Section 280G of the Code and the regulations thereunder. Any amount determined
to be an excess parachute payment after taking into account such reductions
shall be hereafter referred to as the "Initial Excess Parachute Payment". As
soon as practicable after a Change in Control, the Initial Excess Parachute
Payment shall be determined. Upon the Date of Termination following a Change in
Control, the Holding Company shall pay Executive, subject to applicable
withholding requirements under applicable city, state or federal law an amount
equal to:
(1) twenty (20) percent of the Initial Excess Parachute Payment (or such
other amount equal to the tax imposed under Section 4999 of the Code);
and
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(2) such additional amount (tax allowance) as may be necessary to
compensate Executive for the payment by Executive of city, state and
federal income and excise taxes on the payment provided under clause
(1) and on any payments under this Clause (2). In computing such tax
allowance, the payment to be made under Clause (1) shall be multiplied
by the "gross up percentage" ("GUP"). The GUP shall be determined as
follows:
Tax Rate
GUP =_________
1- Tax Rate
The "Tax Rate" for purposes of computing the GUP shall be the sum of
the highest marginal federal, state and city income and
employment-related tax rates, including any applicable excise tax
rates, applicable to the Executive in the year in which the payment
under Clause (1) is made.
(3) Notwithstanding the foregoing, if it shall subsequently be determined
in a final judicial determination or a final administrative settlement
to which Executive is a party that the excess parachute payment as
defined in Section 4999 of the Code, reduced as described above, is
more than the Initial Excess Parachute Payment (such different amount
being hereafter referred to as the "Determinative Excess Parachute
Payment") then the Holding Company's independent accountants shall
determine the amount (the "Adjustment Amount") the Holding Company
must pay to the Executive in order to put the Executive in the same
position as the Executive would have been if the Initial Excess
Parachute Payment had been equal to the Determinative Excess Parachute
Payment. In determining the Adjustment Amount, independent accountants
of the Holding Company shall take into account any and all taxes
(including any penalties and interest) paid by or for Executive or
refunded to Executive or for Executive's benefit. As soon as
practicable after the Adjustment Amount has been so determined, the
Holding Company shall pay the Adjustment Amount to Executive. In no
event however, shall Executive make any payment under this paragraph
to the Holding Company.
7. TERMINATION FOR DISABILITY
(a) If, as a result of Executive's incapacity due to physical or mental
illness, such incapacity being determined by a doctor selected by the Holding
Company, he shall have been absent from his duties with the Holding Company on a
full-time basis for six (6) consecutive months, and within thirty (30) days
after written notice of potential termination is given he shall not have
returned to the full-time performance of his duties, the Holding Company may
terminate Executive's employment for "Disability."
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(b) The Holding Company will pay Executive, as disability pay, a bi-weekly
payment equal to seventy five percent (75%) of Executive's bi-weekly rate of
Base Salary on the effective date of such termination. These disability payments
shall commence on the effective date of Executive's termination and will end on
the earlier of (i) the date Executive returns to the full-time employment of the
Holding Company in the same capacity as he was employed prior to his termination
for Disability and pursuant to an employment agreement between Executive and the
Holding Company; (ii) Executive's full-time employment by another employer;
(iii) Executive attaining the normal age of retirement or receiving benefits
under the Bank's Defined Benefit Plan; (iv) Executive's death; or (v) the
expiration of the term of this Agreement. Notwithstanding any other provisions
to the contrary, the Holding Company may apply any proceeds from disability
income insurance for Executive which was paid for by the Bank or Holding Company
as partial satisfaction of its obligations under this Section.
(c) The Holding Company will cause to be continued life, medical, dental
and disability coverage substantially identical to the coverage maintained by
the Holding Company for Executive prior to his termination for Disability. This
coverage and payments shall cease upon the earlier of (i) the date Executive
returns to the full-time employment of the Holding Company, in the same capacity
as he was employed prior to his termination for Disability and pursuant to an
employment agreement between Executive and the Holding Company; (ii) Executive's
fulltime employment by another employee; (iii) Executive's attaining the normal
age of retirement or receiving benefits under the Bank's Defined Benefit Plan;
(iv) the Executive's death; or (v) the expiration of the term of this Agreement.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period which Executive is
incapable of performing his duties hereunder by reason of temporary disability.
8. TERMINATION UPON RETIREMENT.
Termination by the Holding Company of the Executive based on "Retirement"
shall mean termination in accordance with the Holding Company's or Bank's
retirement policy or in accordance with any retirement arrangement established
with Executive's consent with respect to him. Upon termination of Executive upon
Retirement, Executive shall be entitled to all benefits under any retirement
plan of the Holding Company or the Bank and other plans to which Executive is a
party, and shall be entitled to the benefits, if any, as a former employee under
the Holding Company's or the Bank's employee benefit plans and programs and
compensation plans and programs.
9. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall mean termination because of personal
dishonesty which results in loss to the Holding Company or one of its
affiliates, intentional
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failure to perform stated duties, or willful violation of any law, rule,
regulation (other than traffic violations or similar offenses) or final cease
and desist order which results in substantial loss to the Holding Company or one
of its affiliates. For purposes of this Section, no act, or the failure to act,
on Executive's part shall be "willful" unless done, or omitted to be done, not
in good faith and without reasonable belief that the action or omission was in
the best interest of the Holding Company or its affiliates. Notwithstanding the
foregoing, Executive shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to him a Notice of Termination
which shall include a copy of a resolution duly adopted by the affirmative vote
of not less than three-fourths of the members of the Board at a meeting of the
Board called and held for that purpose (after reasonable notice to Executive and
an opportunity for him, together with counsel, to be heard before the Board),
finding that in the good faith opinion of the Board, Executive was guilty of
conduct justifying termination for Cause and specifying the particulars thereof
in detail. The Executive shall not have the right to receive compensation or
other benefits for any period after termination for Cause. Any stock options and
related limited rights granted to Executive under any stock option plan, or any
unvested awards granted to Executive under any RRP of the Bank, the Holding
Company or any subsidiary or affiliate thereof, shall become null and void
effective upon Executive's receipt of Notice of Termination for Cause pursuant
to Section 10 hereof, and shall not be exercisable by or delivered to Executive
at any time subsequent to such Termination for Cause.
10. NOTICE.
(a) Any purported termination by the Holding Company or by Executive shall
be communicated by Notice of Termination to the other party hereto. For purposes
of this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(b) Subject to Section 10(c), "Date of Termination" shall mean (A) if
Executive's employment is terminated for disability, thirty (30) days after a
Notice of Termination is given (provided that he shall not have returned to the
performance of his duties on a full-time basis during such thirty (30) day
period, and (B) if his employment is terminated for any other reason, the date
specified in the Notice of Termination (which, in the case of a Termination for
Cause, shall not be less than thirty (30) days from the date such Notice of
Termination is given).
(c) If, within thirty (30) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, except upon the occurrence of a
Change in Control and voluntary termination by the Executive in which case the
Date of Termination shall be the date specified in the Notice, the Date of
Termination shall be the date on which the dispute is finally determined,
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either by mutual written agreement of the parties, by a binding arbitration
award, or by a final judgment, order or decree of a court of competent
jurisdiction (the time for appeal therefrom having expired and no appeal having
been perfected) and provided further that the Date of Termination shall be
extended by a notice of dispute only if such notice is given in good faith and
the party giving such notice pursues the resolution of such dispute with
reasonable diligence. Notwithstanding the pendency of any such dispute, the
Holding Company will continue to pay Executive his full compensation in effect
when the notice giving rise to the dispute was given (including, but not limited
to, Base Salary) and continue him as a participant in all compensation, benefit
and insurance plans in which he was participating when the notice of dispute was
given, until the dispute is finally resolved in accordance with this Agreement.
Amounts paid under this Section are in addition to all other amounts due under
this Agreement and shall not be offset against or reduce any other amounts due
under this Agreement.
(d) The Holding Company may terminate the Executive's employment at any
time, but any termination by the Holding Company, other than Termination for
Cause, shall not prejudice Executive's right to compensation or other benefits
under this Agreement or under any other benefit or compensation plans or
programs maintained by the Holding Company from time to time. Executive shall
not have the right to receive compensation or other benefits for any period
after Termination for Cause as defined in Section 9 hereinabove.
11. POST-TERMINATION OBLIGATIONS.
(a) All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with paragraph (b) of this Section 11 during
the term of this Agreement and for one (1) full year after the expiration or
termination hereof.
(b) Executive shall, upon reasonable notice, furnish such information and
assistance to the Holding Company as may reasonably be required by the Holding
Company in connection with any litigation in which it or any of its subsidiaries
or affiliates is, or may become, a party. The Holding Company will reimburse the
Executive for reasonable costs incurred by the Executive in connection with
furnishing such information and assistance to the Holding Company.
12. NON-DISCLOSURE OF HOLDING COMPANY BUSINESS.
Executive recognizes and acknowledges that the knowledge of the business
activities and plans for business activities of the Holding Company and
affiliates thereof, as it may exist from time to time, is a valuable, special
and unique asset of the business of the Bank. Executive will not, during or
after the term of his employment, disclose any knowledge of the past, present,
planned or considered business activities of the Bank or affiliates thereof to
any person, firm, corporation, or other entity for any reason or purpose
whatsoever. Notwithstanding the foregoing, Executive may disclose any knowledge
of banking, financial
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and/or economic principles, concepts or ideas which are not solely and
exclusively derived from the business plans and activities of the Holding
Company. In the event of a breach or threatened breach by the Executive of the
provisions of this Section, the Holding Company will be entitled to an
injunction restraining Executive from disclosing, in whole or in part, the
knowledge of the past, present, planned or considered business activities of the
Holding Company or affiliates thereof, or from rendering any services to any
person, firm, corporation, other entity to whom such knowledge, in whole or in
part, has been disclosed or is threatened to be disclosed. Nothing herein will
be construed as prohibiting the Holding Company from pursuing any other remedies
available to the Holding Company for such breach or threatened breach, including
the recovery of damages from Executive.
13. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Holding Company subject to Section 14
hereof. The Holding Company may use insurance proceeds especially obtained
therefore as partial payment in the event of disability.
14. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Holding Company or any
predecessor of the Holding Company and Executive, except that this Agreement
shall not affect or operate to reduce any benefit or compensation inuring to the
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.
15. EFFECT OF ACTION UNDER BANK AGREEMENT.
Notwithstanding any provision herein to the contrary, to the extent that
payments and benefits, as provided by this Agreement, are paid to or received by
Executive under the Employment Agreement of even date herewith between Executive
and the Bank, such compensation payments and benefits paid by the Bank will be
subtracted from any amount due simultaneously to Executive under similar
provisions of this Agreement. Payments pursuant to this Agreement and the
Holding Company Agreement shall be allocated in proportion to the level of
activity and the time expended on such activities by the Executive as determined
by the Holding Company and the Bank on a quarterly basis.
16. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance,
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charge, pledge, or hypothecation, or to execution, attachment, levy, or similar
process or assignment by operation of law, and any attempt, voluntary or
involuntary, to affect any such action shall be null, void, and of no effect.
17. 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.
18. SUCCESSOR AND ASSIGNS.
This Agreement will inure to the benefit of and be binding upon Executive,
his legal representatives and testate or intestate distributees, and the Holding
Company, its successors and assigns, including any successor by purchase,
merger, consolidation or otherwise or a statutory receiver or any other person
or firm or corporation to which all or substantially all of the assets and
business of the Holding Company may be sold or otherwise transferred. Any such
successor of the Holding Company shall be deemed to have assumed this Agreement
and to have become obligated hereunder to the same extent as the Holding
Company, and Executive's obligations hereunder shall continue in favor of such
successor.
19. 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.
20. 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.
21. GOVERNING LAW.
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This Agreement shall be governed by the laws of the State of Delaware,
unless otherwise specified herein.
22. ARBITRATION.
Any dispute or controversy arising under 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 the 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; provided, however, that
Executive shall be entitled to seek specific performance of his right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under, or in connection with, this Agreement.
In the event any dispute or controversy arising under or in connection with
Executive's termination is resolved in favor of the Executive, whether by
judgment, arbitration or settlement, Executive shall be entitled to the payment
of all back-pay, including salary, bonuses and any other cash compensation,
fringe benefits and any compensation and benefits due Executive under this
Agreement and reinstatement (or the economic equivalent) of any stock options,
restricted stock or RRP awards and related rights purportedly rendered null and
void by the giving of a Notice of Termination for Cause pursuant to section 9.
23. INDEMNIFICATION AND ATTORNEYS' FEES.
(a) The Holding Company shall indemnify, hold harmless and defend Executive
against reasonable costs, including legal fees, incurred by him in connection
with his consultation with legal counsel or arising out of any action, suit or
proceeding in which he may be involved, as a result of his efforts, in good
faith, to defend or enforce the terms of this Agreement.
(b) In the event any dispute or controversy arising under or in connection
with Executive's termination is resolved in favor of the Executive, whether by
judgment, arbitration or settlement, Executive shall be entitled to the payment
of all back-pay, including salary, bonuses and any other cash compensation,
fringe benefits and any compensation and benefits due Executive under this
Agreement.
(c) The Holding Company shall indemnify, hold harmless and defend Executive
for all acts or omissions taken or not taken by him in good faith while
performing services for the Holding Company to the same extent and upon the same
terms and conditions as other similarly situated officers and directors of the
Holding Company. If and to the extent that the Holding Company maintains, at any
time during the Employment Period, an insurance policy covering the other
officers and directors of the Holding Company against law suits, the
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Holding Company shall use its best efforts to cause Executive to be covered
under such policy upon the same terms and conditions as other similarly situated
officers and directors.
[Signatures appear on the following page.]
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SIGNATURES
IN WITNESS WHEREOF, Queens County Bancorp, Inc. has caused this Employment
Agreement to be executed and its seal to be affixed hereunto by its duly
authorized officer and its directors, and Executive has signed this Employment
Agreement, on the 27th day of June, 2000.
ATTEST: QUEENS COUNTY BANCORP, INC.
/s/ Michael J. Lincks BY: /s/ Joseph R. Ficalora
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Secretary Duly Authorized Officer
[SEAL]
WITNESS:
/s/ Mark A. Ricca /s/ William J. Jennings
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Executive
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