EXHIBIT 10.1(D)
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as
of November 22, 1999 by and between Haven Bancorp, Inc., a publicly
held business corporation organized and operating under the laws of
the State of Delaware and having an office at 615 Merrick Avenue,
Westbury, New York 11590 ("Company") and Philip S. Messina, an
individual residing at No. 8 Bryan Meadow Path, Fort Salonga, New
York 11768 ("Executive").
WITNESSETH:
WHEREAS, Executive currently serves the Company in the capacity of
Chief Executive Office and also serves as Chief Executive Officer
of CFS Bank, a wholly-owned subsidiary of the Company, ("Bank") and
as Chairman of the Board of Directors of the Company ("Board") and
the Board of Directors of the Bank ("Bank Board"); and
WHEREAS, the Company desires to assure for itself the continued
availability of Executive's services and the ability of Executive
to perform such services with a minimum of personal distraction in
the even of a pending or threatened Change in Control (as
hereinafter defined); and
WHEREAS, Executive is willing to continue to serve the Company and
the Bank on the terms and conditions hereinafter set forth; and
WHEREAS, the Company and Executive desire to restate and modify the
Employment Agreement by and between the Company and Executive dated
September 21, 1995 and the associated Amendatory Agreement, dated
May 28, 1997, to correct technical inaccuracies in the aforesaid
agreements along with the Bank Employment Agreement entered between
the Bank and Executive, dated May 28, 1997.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and conditions hereinafter set forth, the Company and
Executive hereby agree as follows:
Section 1. Employment.
The Company agrees to continue to employ Executive, and Executive
hereby agrees to such continued employment, during the period and
upon the terms and conditions set forth in this Agreement.
Section 2. Employment Period; Remaining Unexpired Employment
Period.
(a) The terms and condition of this Agreement shall be and remain
in effect during the period of employment established under this
Section 2 ("Employment Period"). The Employment Period shall be
for an initial term of three (3) years beginning on the date of
this Agreement and ending on the third (3rd) anniversary date of
this Agreement, plus such extensions, if any, as are provided
pursuant to Section 2(b).
(b) Except as provided in Section 2(c), beginning on the date of
this Agreement, the Employment Period shall automatically be
extended for one (1) additional day each day, unless either the
Company or Executive elects not to extend the Agreement further by
giving written notice to the other party, in which case the
Employment Period shall end on the third (3rd) anniversary of the
date on which such written notice is given. For all purposes of
this Agreement, the Term "Remaining Unexpired Employment Period" as
of any date shall mean the period beginning on such date and ending
on: (i) if a notice of non-extension has been given in accordance
with this Section 2(b), the third anniversary of the date on which
such notice was given; or (ii) in all other cases, the third
anniversary of the date as of which the Remaining Unexpired
Employment Period is being determined. Upon termination of
Executive's employment with the Company for any reason whatsoever,
any daily extensions provided pursuant to this Section 2(b), if not
previously discontinued, shall automatically cease.
(c) Nothing in this Agreement shall be deemed to prohibit the
Company at any time from terminating Executive's employment during
the Employment Period with or without notice for any reason;
provided, however, that the relative rights and obligations of the
Company and Executive in the event of any such termination shall be
determined under this Agreement.
Section 3. Duties
Executive shall serve as Chief Executive Officer of the Company and
as Chairman of the Board, having such power, authority and
responsibility and performing such duties as are prescribed by or
under the By-Laws of the Company and as are customarily associated
with such positions. Executive shall devote his full business time
and attention (other than during weekends, holidays, approved
vacation periods, and periods of illness or approved leaves of
absence) to the business and affairs of the Company and shall use
his best efforts to advance the interests of the Company. The
Executive's principal place of employment shall be the location at
the effective date of this Agreement or within thirty (30) miles
thereof.
Executive shall also serve as Chief Executive Officer of the Bank
and as Chairman of the Bank Board without additional compensation
therefor, if duly elected or appointed to serve in such capacities
in accordance with the Bank prevailing practices, policies and
procedures. If the Executive is suspended or discharged, or is
subject to any regulatory prohibition or restriction with respect
to participation in the affairs of the Bank, he shall continue to
perform services for the Company in accordance with this Agreement
but shall not directly or indirectly provide services to or
participate in the affairs of the Bank in a manner inconsistent
with the terms of such suspension or discharge or any applicable
regulatory order.
Section 4. Cash Compensation
In consideration for the services to be rendered by Executive
hereunder, the Company shall pay to Executive a salary at an
initial annual rate of $600,000 payable in approximately equal
installments in accordance with the Company's customary payroll
practices for senior officers. Prior to each anniversary of the
date of this Agreement occurring during the Employment Period, or
on such other date as the Board may determine, but in no event
greater than twelve (12) months between reviews, the Board shall
review Executive's annual rate of salary and may, in its
discretion, approve an increase therein. In addition to salary,
Executive may receive other cash compensation from the Company or
Bank for services hereunder at such times, and in such amounts and
on such terms and conditions as the Board may determine from time
to time.
Section 5. Employee Benefit Plans and Programs
During the Employment Period, Executive shall be treated as an
employee of the Company and the Bank and shall be entitled to
participate in and receive benefits under any and all qualified or
non-qualified retirement, pension, savings, profit-sharing or stock
bonus plans, any and all group life, health (including
hospitalization, medical and major medical), dental, accident and
long term disability insurance plans, and any other employee
benefit and compensation plans (including, but not limited to, any
incentive compensation plans or programs, stock option and
appreciation rights plans and restricted stock plans)(collectively,
"Benefit Plans") as may from time to time be maintained by, or
cover employees of, the Company or the Bank, in accordance with the
terms and conditions of such employee benefit plans and programs
and compensation plans and programs and consistent with the
Company's and the Bank's customary practices. 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.
Section 6. Supplemental Executive Retirement Benefits
Without limiting the generality of Section 5 hereof, in the event
that the amount of benefits or contributions Executive would have
received or accrued under the benefit formulas of the tax-qualified
Benefit Plans of the Company and the Bank is limited by Sections
401(a)(17), 401(k)(3), 401(m), 402(g) or 415 of the Internal
Revenue Code of 1986 ("Benefit Limitations"), the Company shall
provide Executive with supplemental benefits equal to the benefits
attributable to employer contributions that he would have received
if the Benefit Limitations did not apply. Such supplemental
benefits shall be provided on a non-qualified, deferred
compensation basis and shall be determined under the benefit
formulas and actuarial assumptions of the applicable Benefit Plans.
Payment of such supplemental benefits shall be made in the same
manner and at the same time as payment of the Executive's benefits
under the applicable Benefit Plan.
Section 7. Indemnification
(a) During the Employment Period and for a period of six (6) years
thereafter, the Company shall cause to the extent commercially
available Executive to be covered by and named as an insured under
any policy or contract of insurance obtained by it or the Bank to
insure directors and officers against personal liability for acts
or omissions in connection with service as an officer or director
of the Company or the Bank, or service in other capacities at the
request of the Company or the Bank. The coverage provided to
Executive pursuant to this Section 7 shall be of the same scope and
on the same terms and conditions as the coverage (if any) provided
to other officers or directors of the Company and the Bank.
(b) To the maximum extent permitted under applicable law, during
the Employment Period and for a period of six (6) years thereafter,
the Company shall indemnify Executive against and hold Executive
harmless from any costs, liabilities, losses and exposures to the
fullest extent and on the most favorable terms and conditions that
similar indemnification is offered to any director or officer of
the Company, the Bank or any subsidiary or affiliate thereof.
Section 8. Outside Activities
Executive may serve as a member of the boards of directors of such
business, community and charitable organizations as Executive may
disclose to and as may be approved by the Board (which approval
shall not be unreasonably withheld); provided, however, that such
service shall not materially interfere with the performance of his
duties under this Agreement. Executive may also engage in personal
business and investment activities which do not materially
interfere with the performance of his duties hereunder; provided,
however, that such activities are not prohibited under any code of
conduct or investment or securities trading policy established by
the Company and generally applicable to all similarly situated
executives.
Section 9. Working Facilities and Expenses
Executive's principal place of employment shall be at the Company's
executive offices at the address first above written, or at such
other location within Nassau County at which the Company shall
maintain its principal executive offices, or at such other location
as the Company and Executive may mutually agree upon. The Company
shall provide Executive at his principal place of employment with
a private office, secretarial services, an automobile, and other
support services and facilities suitable to his position with the
Company and necessary or appropriate in connection with the
performance of his assigned duties under this Agreement. The
Company shall reimburse Executive for his ordinary and necessary
business expenses, including, without limitation, all expenses
associated with his business of the aforementioned automobile,
membership fees, dues, capital contributions or such other
business-related charges required for, or related to, membership or
participation in such clubs and organizations as Executive and the
Company shall mutually agree are necessary and appropriate for
business purposes, and his travel and entertainment expenses
incurred in connection with the performance of his duties under
this Agreement, in each case upon presentation to the Company of an
itemized account of such expenses in such form as the Company may
reasonably require.
Section 10. Termination of Employment with Severance Benefits
Executive shall be entitled to the severance benefits described in
Section 11 hereof in the event that his employment with the Company
or the Bank terminates during the Employment Period under any of
the following circumstances:
(a) prior to a Change in Control, as defined in Section 14 hereof:
(i) If in the event the Executive shall not hold any one of the
positions of Chairman and Chief Executive Officer for reasons other
than for Disability, Retirement, Voluntary Resignation or Cause, or
(ii) In the event of a material breach of this Agreement by
Company, provided that he first resigns from all positions with the
Bank and Company. If the right to severance benefits should arise
pursuant to the terms of this paragraph, the Board, after first
having received thirty (30) days written notice, may take such
steps as necessary to cure, correct and/or reinstate the Executive
and if such cure, correction and/or reinstatement is effected
promptly after receipt of notice; no severance benefits shall be
payable.
(b) subsequent to a Change in Control, as defined in Section 14:
(i) Executive's voluntary resignation from employment with the
Company and the Bank and Executive's voluntary resignation of
membership with the Board and Bank Board; or
(ii) the termination by the Company or the Bank of Executive's
employment hereunder, for any reason, other than Death, Disability
or Cause.
Section ll. Severance Benefits
Upon termination of Executive's employment with the Company under
the circumstances described in Section 10 of this Agreement, the
Company shall pay and provide to Executive (or, in the event of his
death following his termination of employment, to his estate):
(a) his earned but unpaid compensation (including, without
limitation, all items which constitutes wages under Section 190.1
of the New York Labor Law and the payment of which is not otherwise
provided for under this Section 11) as of the date of the
termination of his employment with the Company, such payment to be
made at the time and in the manner prescribed by law applicable to
the payment of wages but in no event later than thirty (30) days
after termination of employment;
(b) the benefits, if any, to which Executive is entitled as a
former employee under the Benefits Plans maintained by the Company
and the Bank for their officers and employees;
(c) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long term
disability insurance benefits, in addition to that provided
pursuant to Section 11(b), and after taking into account the
coverage provided by any subsequent employer, if and to the extent
necessary to provide coverage for Executive and his family
equivalent to the coverage to which Executive would be entitled
under the applicable Benefit Plans (as in effect on the date of his
termination of employment, or, if his termination of employment
occurs after a Change of Control, on the date of such Change of
Control, whichever benefits are greater), if Executive had
continued working for the Company and the Bank either:
(i) during the Remaining Unexpired Employment Period, if
Executive's termination of employment occurs under the
circumstances described in Section 10(a); or
(ii) until Executive's death, if the Executive's termination of
employment occurs under the circumstances described in Section
10(b); and during such period Executive received the highest annual
rate of compensation achieved during that portion of the Employment
Period prior to Executive's termination of employment, such
benefits to be provided without regard to whether Executive's
continued participation in the applicable Benefits Plans is
prohibited during such period and to include continuation coverage
for Executive and members of Executive's family following the
expiration of the applicable period set forth in Section 11(c)(i)
or (ii) above equivalent to the continuation coverage that they
would be entitled to under the Consolidated Omnibus Budget
Reconciliation Act ("COBRA") if such benefits were provided under
the applicable Benefits Plans; and
(d) within thirty (30) days following his termination of
employment with the Company, a lump sum payment, in an amount equal
to the present value of the salary that Executive would have earned
if Executive had continued working for the Company and the Bank
during the Remaining Unexpired Employment Period at the highest
annual rate of salary achieved during that portion of the
Employment Period which is prior to Executive's termination of
employment with the Company and the Bank, where such present value
is to be determined using a discount rate equal to the applicable
short-term federal rate prescribed under Section 1274(d) of the
Internal Revenue Code of 1986 ("Code"), compounded using the
compounding period corresponding to the Company's and the Bank's
regular payroll periods for its officers;
(e) within thirty (30) days following his termination of
employment with the Company or the Bank, a lump sum payment in an
amount equal to the excess, if any, of:
(i) the present value of the aggregate benefits to which Executive
would be entitled under any and all qualified and non-qualified
defined benefit pension plans maintained by, or covering employees
of, the Company or the Bank, if Executive were 100% vested
thereunder and had continued working for the Company and the Bank
during the Remaining Unexpired Employment Period, such benefits to
be determined as of the date of termination of employment by adding
to the service actually recognized under such plans an additional
period equal to the Remaining Unexpired Employment Period and by
including in the compensation recognized under such plans all
amounts payable under Sections 11(a), (d), (h), (i), and (j) which
would be credited under such plans had they been paid over the
Remaining Unexpired Employment Period; over
(ii) the present value of the benefits to which Executive is
actually entitled under such defined benefit pension plans as of
the date of his termination;
where such present values are to be determined using the mortality
tables prescribed under Section 471(e)(3)(A)(ii)(I) of the Code and
a discount rate, compounded monthly equal to the annualized rate of
interest prescribed by the Pension Benefit Guaranty Corporation for
the valuation of immediate annuities payable under terminating
single-employer defined benefit plans for the month in which
Executive's termination of employment occurs ("Applicable PBGC
Rate");
(f) within thirty (30) days following his termination of
employment with the Company and the Bank, a lump sum payment in an
amount equal to the present value of the additional employer
contributions to which Executive would have been entitled under any
and all qualified and non-qualified defined contribution plans
maintained by, or covering employees of, the Company or the Bank,
and if Executive were 100% vested thereunder and had continued
working for the Company and the Bank during the Remaining Unexpired
Employment Period at the highest annual rate of compensation
achieved during that portion of the Employment Period which is
prior to Executive's termination of employment and making the
maximum amount of employee contributions, if any, required under
such plan or plans, such present value to be determined on the
basis of a discount rate, compounded using the compounding period
that corresponds to the frequency with which employer contributions
are made to the relevant plan, equal to theapplicable short-term
federal rate prescribed under Section 1274(d) of the Code
("Applicable Federal Rate");
(g) within thirty (30) days following his termination of
employment with the Company and the Bank, a lump sum payment in an
amount equal to the fair market value (determined as of the date of
his termination of employment, or, if his termination of employment
occurs after a Change of Control, on the date of such Change of
Control, whichever value is greater) of any stock that would have
been allocated or awarded to Executive under any and all stock-
based qualified or non-qualified employee benefit plan or plans
maintained by, or covering employees of, the Company or the Bank,
if Executive were 100% vested thereunder and continued working for
the Company and the Bank during the Remaining Unexpired Employment
Period at the highest annual rate of compensation achieved during
that portion of the Employment Period which is prior to the
Executive's termination of employment;
(h) the payments that would have been made to Executive under any
cash bonus or long-term or short-term cash incentive compensation
plan maintained by, or covering employees of, the Company or the
Bank if Executive had continued working for the Company and the
Bank during the Remaining Unexpired Employment Period and had
earned the maximum bonus or incentive award in each calendar year
that ends during the Remaining Unexpired Employment Period, such
payments to be equal to the product of:
(i) the maximum percentage rate at which an award was ever
available to Executive under such incentive compensation plan;
multiplied by
(ii) the salary that would have been paid to Executive during each
such calendar year at the highest annual rate of salary achieved
during that portion of the Employment Period which is prior to
Executive's termination of employment with the Company and the
Bank:
such payments to be made (without discounting for early payment)
within thirty (30) days following Executive's termination of
employment with the Company and the Bank;
(i) at the election of Executive made within thirty (30) days
following his termination of employment with the Company and the
Bank, upon the surrender of options or appreciation rights issued
to Executive under any stock option and appreciation rights plan or
program maintained by, or covering employees of, the Company or the
Bank, a lump sum payment in an amount equal to the product of:
(i) the excess of (A) the fair market value of a share of stock of
the same class as the stock subject to the option or appreciation
right, determined as of the date of termination of employment with
the Company and the Bank, over (B) the exercise price per share for
such option or appreciation right, as specified in or under the
relevant plan or program; multiplied by
(ii) the number of shares with respect to which options or
appreciation rights are being surrendered.
For purposes of this Section 11(i) and for purposes of determining
Executive's right following his termination of employment with the
Company to exercise any options or appreciation rights not
surrendered pursuant hereto, Executive shall be deemed fully vested
in all options and appreciation rights under any stock option or
appreciation rights plan or program maintained by, or covering
employees of, the Company or the Bank, even if Executive is not
vested under such plan or program;
(j) at the election of Executive made within thirty (30) days
following Executive's termination of employment with the Company or
the Bank, upon the surrender of any shares awarded to Executive
under any restricted stock plan maintained by, or covering
employees of, the Company or the Bank, a lump sum payment in an
amount equal to the product of:
(i) the fair market value of a share of stock of the same class of
stock granted under such plan, determined as of the date of
Executive's termination of employment; multiplied by
(ii) the number of shares which are being surrendered.
For purposes of this Section 11(j) and for purposes of determining
Executive's right following his termination of employment with the
Company to any stock not surrendered pursuant hereto, Executive
shall be deemed fully vested in all shares awarded under any
restricted stock plan maintained by, or covering employees of, the
Company or the Bank, even if Executive is not vested under such
plan;
(k) within thirty (30) days following his termination of
employment with the Company or the Bank, a lump sum payment in an
amount equal to the present value of the additional benefits to
which the Executive would have been entitled under Section 6 of
this Agreement if Executive had continued working for the Company
and the Bank during the Remaining Unexpired Employment Period at
the highest annual rate of salary achieved during that portion of
the Employment Period which is prior to Executive's termination of
employment, where such present value is to be determined using the
Applicable Mortality Table and Applicable Federal Rate and assuming
that the Benefit Limitations as in effect at the time of
Executive's termination remained in effect during the Remaining
Unexpired Employment Period;
(l) if Executive's termination of employment occurs under the
circumstances described in Section 10(b), within thirty (30) days
following his termination of employment with the Company and the
Bank, a lump sum payment in an amount equal to the excess, if any,
of:
(i) the present value of the aggregate benefits to which Executive
would be entitled under any and all qualified and non-qualified
defined benefit plans maintained by, or covering employees of, the
Company or the Bank, including the supplemental benefits relating
to such plans that are provided for under Section 6 of the
Agreement, if Executive were 100% vested thereunder and had
continued working for the Company during the Remaining Unexpired
Employment Period at the highest annual rate of salary achieved
during that portion of the Employment Period which is prior to
Executive's termination of employment, and such plans provided for
an early retirement benefit commencing at the later of Executive's
attainment of age 55 or the expiration of the Remaining Unexpired
Employment Period, equal to the retirement benefit payable under
such plans as of Executive's normal retirement date thereunder and
without any actuarial reduction to reflect benefit commencement
prior to such normal retirement date, such benefits to be
determined in the same manner as specified for determining the
amount specified under Section 11(e)(i) of this Agreement; over
(ii) the sum of: (A) the present value of the benefits to which
Executive is actually entitled to receive under the qualified and
non-qualified defined benefit plans maintained by, or covering
employees of, the Company or the Bank, and the provisions of
Section 6 of this Agreement and (B) the payment to be made pursuant
to Section 11(e) of this Agreement;
where such present values are to be determined using the Applicable
Mortality Table and Applicable Federal Rate; and
(m) if Executive's termination of employment with the Company
occurs under the circumstances described in Section 10(b),
continuation, at no cost to Executive, of the fringe benefits and
perquisites made available or provided to Executive immediately
prior to the Change of Control for the Remaining Unexpired
Employment Period, including, but not limited to, use of the
automobile provided to Executive by the Company or the Bank
immediately prior to the Change of Control, and continued payment
of all membership fees, dues, capital contributions and other
expenses for membership in such clubs, associations or other
organizations for which expenses were paid by the Company or the
Bank on behalf of Executive during the Employment Period prior to
the Change of Control.
The Company and Executive hereby stipulate that the damages which
may be incurred by Executive following any termination of
employment with the Company and the Bank under the circumstances
described in Section 10 of this Agreement are not capable of
accurate measurement as of the date first above written and that
the payments and benefits contemplated by this Section 11
constitute reasonable damages under the circumstances and shall be
payable without any requirement of proof of actual damage and
without regard to Executive's efforts, if any, to mitigate damages.
The Company and the Executive further agree that the Company may
condition the payments and benefits (if any) due under this
Agreement on receipt of the Executive's resignation from any and
all positions which he holds as an officer, director or committee
member with respect to the Company, the Bank or any subsidiary or
affiliate of either of them. The Executive agrees that in the
event he voluntarily resigns from any position with the Company or
the Bank, he shall resign from all positions with the Company and
its subsidiaries and affiliates.
Section 12. Termination for Disability.
(a) If, as a result of Executive's incapacity due to physical or
mental illness, he shall have been absent from his duties with the
Company and the Bank 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 Company and the Bank may
terminate Executive's employment for "Disability."
(b) The Company will pay Executive, as disability pay, three-
quarters (3/4) of Executive's rate of salary as in effect pursuant
to Section 4 on the effective date of such termination, payable in
approximately equal installments in accordance with the Company's
or Bank's customary payroll practices. 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 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 Company; (ii)
Executive's full-time employment by another employer; (iii)
Executive attaining the age of 65; (iv) Executive's death; or (v)
the expiration of the term of this Agreement. The disability pay
shall be reduced by the amount, if any, paid to the Executive under
any plan of the Company or the Bank providing disability benefits
to the Executive.
(c) The Company will cause to be continued life, medical, dental
and disability coverage substantially identical to the coverage
maintained by the Company or the Bank 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 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 Company; (ii)
Executive's full-time employment by another employer; (iii)
Executive's attaining the age of 65; (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
during which Executive is incapable of performing his duties
hereunder by reason of temporary disability.
Section 13. Termination without Additional Company Liability
(a) In the event that Executive's employment with the Company or
the Bank shall terminate during the Employment Period on account
of:
(i) the discharge of Executive for "Cause," which, for purposes of
this Agreement, shall mean: (A) Executive intentionally engages in
dishonest conduct in connection with his performance of services
for the Company or one of its affiliates resulting in his
conviction of, or pleading guilty or nolo contendere to, a felony
or any crime involving moral turpitude; (B) a material loss to the
Company or one of its affiliates caused by the Executive's willful
failure or refusal to perform his duties under this Agreement and
his failure to cure such breach within sixty (60) days following
written notice thereof from the Company; (C) Executive breaches his
fiduciary duties to the Company or one of its affiliates for
personal profit; or (D) Executive's willful breach or violation of
any law, rule or regulation (other than traffic violations or
similar offenses), or final cease and desist order in connection
with his performance of services for the Company or one of its
affiliates;
(ii) Executive's voluntary resignation from employment with the
Company or the Bank for reasons other than those specified in
Section 10;
(iii) Executive's death; or
(iv) Executive's "Retirement," which, for purposes of this
Agreement, shall mean Executive's voluntary termination at a time
when he is eligible for a retirement benefit under the qualified
defined benefit pension plan or plans of the Company or the Bank,
or if no such plan is currently maintained, the Executive's
voluntary termination of employment with the Company and the Bank
at or after the attainment of age 65;
then the Company shall have no further obligations under this
Agreement, other than the payment to Executive (or, in the event of
his death, to his estate) of his earned but unpaid salary as of the
date of the termination of his employment with the Company and the
Bank, and the provision of such other benefits, if any, to which
Executive is entitled as a former employee under the employee
benefit plans and programs and compensation plans and programs
maintained by, or covering employees of, the Company or the Bank.
(b) For purposes of Section 13(a)(i)(B) or (D), no act or failure
to act, on the part of Executive, shall be considered "willful"
unless it is done, or omitted to be done, by Executive in bad faith
or without reasonable belief that Executive's action or omission
was in the best interests of the Company or its affiliates. Any
act, or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or based upon the written
advice of counsel for the Company shall be conclusively presumed to
be done, or omitted to be done, by Executive in good faith and in
the best interests of the Company or its affiliates. The cessation
of employment of Executive shall not be deemed to be for "Cause"
within the meaning of Section 13(a)(i) unless and until there shall
have been delivered to Executive a copy of a resolution duly
adopted by the affirmative vote of three-fourths of the non-
employee members of the Board at a meeting of the Board called and
held for such purpose (after reasonable notice is provided to
Executive and Executive is given an opportunity, together with
counsel, to be heard before the Board), finding that, in the good
faith opinion of the Board, Executive is guilty of the conduct
described in Section 13(a)(i) above, and specifying the particulars
thereof in detail.
Section 14. Change of Control.
(a) A Change of Control of the Company ("Change of Control") shall
be deemed to have occurred upon the happening of any of the
following events:
(i) approval by the stockholders of the Company of a transaction
that would result in the reorganization, merger or consolidation of
the Company, respectively, with one or more other persons, other
than a transaction following which:
(A) at least 51% of the equity ownership interests of the entity
resulting from such transaction are beneficially owned (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) in
substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) at
least 51% of the outstanding equity ownership interests in the
Company; and
(B) at least 51% of the securities entitled to vote generally in
the election of directors of the entity resulting from such
transaction are beneficially owned (within the meaning of Rule 13d-
3 promulgated under the Exchange Act) in substantially the same
relative proportions by persons who, immediately prior to such
transaction, beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) at least 51% of the securities
entitled to vote generally in the election of directors of the
Company;
(ii) the acquisition of all or substantially all of the assets of
the Company or beneficial ownership (within the meaning of rule
13d-3 promulgated under the Exchange Act) of 20% or more of the
outstanding securities of the Company entitled to vote generally in
the election of directors by any person or by any persons acting in
concert, or approval by the stockholders of the Company of any
transaction which would result in such an acquisition;
(iii) a complete liquidation or dissolution of the Company, or
approval by the stockholders of the Company of a plan for such
liquidation or dissolution;
(iv) the occurrence of any event if, immediately following such
event, at least 50% of the members of the Board do not belong to
any of the following groups:
(A) individuals who were members of the Board on the date of this
Agreement; or
(B) individuals who first became members of the Board after the
date of this Agreement either:
(I) upon election to serve as a member of the Board by affirmative
vote of three-quarters of the members of such board, or of a
nominating committee thereof, in office at the time of such first
election; or
(II) upon election by the stockholders of the Company to serve as
a member of the Board, but only if nominated for election by
affirmative vote of three-quarters of the members of the Board, or
of a nominating committee thereof, in office at the time of such
first nomination;
provided, however, that such individual's election or nomination
did not result from an actual or threatened election contest
(within the meaning of Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) or other actual or threatened solicitation
of proxies or consents (within the meaning of rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) other than by or
on behalf of the Board; or
(v) any event which would be described in Section 14(a)(i), (ii),
(iii) or (iv) if the term "Bank" were substituted for the term
"Company" therein.
In no event, however, shall a Change of Control be deemed to have
occurred as a result of any acquisition of securities or assets of
the Company, the Bank, or a subsidiary of either of them, by the
Company, the Bank, or a subsidiary of either of them, or by any
employee benefit plan maintained by any of them. For purposes of
this Section 14(a), the term "person" shall have the meaning
assigned to it under Sections 13(d)(3) or 14(d)(2) of the Exchange
Act.
(b) Upon a Change in Control, the Company shall establish an
irrevocable grantor trust, which satisfies the requirements of
Revenue Procedure 92-64, 1992 C.B. 422, and shall contribute to
such trust an amount sufficient to provide for the benefits to be
paid to Executive pursuant to Section 6 of this Agreement, the
amounts to be paid to Executive pursuant to Section 11(c)(ii), if
such amounts may not be provided under the Benefit Plans, and the
fringe benefits and perquisites to be provided under Section 11(m).
Section 15. Tax Indemnification.
(a) This Section 15 shall apply if Executive's employment is
terminated upon or following (i) a Change of Control (as defined in
Section 14 of this Agreement); or (ii) a change "in the ownership
or effective control" of the Company or the Bank or "in the
ownership of a substantial portion of the assets" of the Company or
the Bank within the meaning of Section 280G of the Code. If this
Section 15 applies, then, if for any taxable year, Executive shall
be liable for the payment of an excise tax under Section 4999 of
the Code with respect to any payment in the nature of compensation
made by the Company, the Bank or any direct or indirect subsidiary
or affiliate of the Company or the Bank to (or for the benefit of)
Executive, the Company shall pay to Executive an amount equal to X
determined under the following formula:
X = E x P
1 - [(FI x (1 - SLI)) + SLI + E + M]
where
E = the rate at which the excise tax is assessed under Section
4999 of the Code;
P = the amount with respect to which such excise tax is assessed,
determined without regard to this Section 15;
FI = the highest marginal rate of income tax applicable to
Executive under the Code for the taxable year in question;
SLI = the sum of the highest marginal rates of income tax
applicable to Executive under all applicable state and local laws
for the taxable year in question; and
M = the highest marginal rate of Medicare tax applicable to
Executive under the Code for the taxable year in question.
With respect to any payment in the nature of compensation that is
made to (or for the benefit of) Executive under the terms of this
Agreement, or otherwise, and on which an excise tax under Section
4999 of the Code will be assessed, the payment determined under
this Section 15(a) shall be made to Executive on the earlier of (i)
the date the Company, the Bank or any direct or indirect subsidiary
or affiliate of the Company or the Bank is required to withhold
such tax, or (ii) the date the tax is required to be paid by
Executive.
(b) Notwithstanding anything in this Section 15 to the contrary,
in the event that Executive's liability for the excise tax under
Section 4999 of the Code for a taxable year is subsequently
determined to be different than the amount determined by the
formula (X + P) x E, where X, P and E have the meanings provided in
Section 15(a), Executive or the Company, as the case may be, shall
pay to the other party at the time that the amount of such excise
tax is finally determined, an appropriate amount, plus interest,
such that the payment made under Section 15(a), when increased by
the amount of the payment made to Executive under this Section
15(b) by the Company, or when reduced by the amount of the payment
made to the Company under this Section 15(b) by Executive, equals
the amount that should have properly been paid to Executive under
Section 15(a). The interest paid under this Section 15(b) shall be
determined at the rate provided under Section 1274(b)(2)(B) of the
Code. To confirm that the proper amount, if any, was paid to
Executive under this Section 15, Executive shall furnish to the
Company a copy of each tax return which reflects a liability for an
excise tax payment made by the Company, at least 20 days before the
date on which such return is required to be filed with the Internal
Revenue Service.
Section 16. Covenant Not To Compete.
Executive hereby covenants and agrees that, in the event of his
termination of employment with the Company prior to the expiration
of the Employment Period for any reason other than the
circumstances provided under Section 10 hereof, for a period of one
(1) year following the date of his termination of employment with
the Company (or, if less, for the Remaining Unexpired Employment
Period), Executive shall not, without the written consent of the
Company, become an officer, employee, consultant, director or
trustee of any savings bank, savings and loan association, savings
and loan holding company, bank or bank holding company, or any
direct or indirect subsidiary or affiliate of any such entity, that
competes with the business of the Company and/or the Bank in any
city, town or county in which the Bank or the Company has an office
or has filed an application for regulatory approval to establish an
office as of the date of Executive's termination of employment;
provided, however, that if Executive's employment shall be
terminated on account of Disability as provided in Section 12 of
this Agreement, this Section 16 shall not prevent Executive from
accepting any position or performing any services if (a) Executive
first offers, by written notice, to accept a similar position with,
or perform similar services for, the Company on substantially the
same terms and conditions and (b) the Company declines to accept
such offer within ten (10) days after such notice is given.
Section 17. Confidentiality.
Unless Executive obtains the prior written consent of the Company,
Executive shall keep confidential and shall refrain from using for
the benefit of himself, or any person or entity other than the
Company or any entity which is a subsidiary of the Company or of
which the Company is a subsidiary, any material document or
information obtained from the Company, or from its parent or
subsidiaries, in the course of his employment with any of them
concerning their properties, operations or business (unless such
document or information is readily ascertainable from public or
published information or trade sources or has otherwise been made
available to the public through no fault of his own) until the same
ceases to be material (or becomes so ascertainable or available);
provided, however, that nothing in this Section 17 shall prevent
Executive, with or without the Company's consent, from
participating in or disclosing documents or information in
connection with any judicial or administrative investigation,
inquiry or proceeding to the extent that such participation or
disclosure is required under the applicable law.
Section 18. No Effect on Employee Benefit Plans or Programs.
The termination of Executive's employment during the term of this
Agreement or thereafter, whether by the Company or by Executive,
shall have no effect on the rights and obligations of the parties
hereto under the Company's and the Bank's qualified or non-
qualified retirement, pension, savings, thrift, profit-sharing or
stock bonus plans, group life, health (including hospitalization,
medical and major medical), dental, accident and long term
disability insurance plans or such other employee benefit plans or
programs, or compensation plans or programs, as may be maintained
by, or cover employees of, the Company or the Bank from time to
time.
Section 19. Successors and Assigns.
This Agreement will inure to the benefit of and be binding upon
Executive, his legal representatives and testate or intestate
distributees, the Company and its successors and assigns, including
any successor by merger or consolidation 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 Company may be
sold or otherwise transferred. Failure of the Company to obtain
from any successor its express written assumption of the Company's
obligations hereunder at least sixty (60) days in advance of the
scheduled effective date of any such succession shall be deemed a
material breach of this Agreement.
Section 20. Notices.
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent,
instruction, objection or waiver, shall be in writing and shall be
deemed to have been given at such time as it is delivered
personally, or five (5) days after mailing if mailed, postage
prepaid, by registered or certified mail, return receipt requested,
addressed to such party at the address listed below or at such
other address as one such party may by written notice specify to
the other party:
If to Executive:
Philip S. Messina
No. 8 Bryan Meadow Path
Fort Salonga, New York 11768
If to the Company:
Haven Bancorp, Inc.
615 Merrick Avenue
Westbury, New York 11590
Attention: Chairman of the Compensation Committee
of the Board of Directors
With a copy to:
Haven Bancorp, Inc.
615 Merrick Avenue
Westbury, NY 11590
Attention: General Counsel
Section 21. Indemnification for Attorneys' Fees.
The Company shall indemnify, hold harmless and defend Executive
against reasonable costs, including legal fees, incurred by
Executive in connection with or arising out of any action, suit or
proceeding in which Executive may be involved, as a result of his
efforts, in good faith, to defend or enforce the terms of this
Agreement. For purposes of this Agreement, any settlement
agreement which provides for payment of any amounts in settlement
of the Company's obligations hereunder shall be conclusive evidence
of Executive's entitlement to indemnification hereunder, and any
such indemnification payments shall be in addition to amounts
payable pursuant to such settlement agreement, unless such
settlement agreement expressly provides otherwise.
Section 22. Severability.
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of
any other provision hereof.
Section 23. Waiver.
Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such
term, covenant, or condition. A waiver of any provision of this
Agreement must be made in writing, designated as a waiver, and
signed by the party against whom its enforcement is sought. Any
waiver or relinquishment of any right or power hereunder at any one
or more times shall not be deemed a waiver or relinquishment of
such right or power at any other time or times.
Section 24. Counterparts.
This Agreement may be executed in two (2) or more counterparts,
each of which shall be deemed an original, and all of which shall
constitute one and the same Agreement.
Section 25. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the federal laws of the United States and, to the
extent that federal law is inapplicable, in accordance with the
laws of the State of New York applicable to contracts entered into
and to be performed entirely within the State of New York.
Section 26. Headings and Construction.
The headings of Sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any
Section. Any reference to a Section number shall refer to a
Section of this Agreement, unless otherwise stated.
Section 27. Entire Agreement; Modifications.
This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and supersedes in its
entirety any and all prior agreements, understandings or
presentations relating to the subject matter hereof, including the
agreements made effective as of November 18, 1994, September 21,
1995 and the associated amendatory agreement, dated May 28, 1997 by
and between the Company and Executive. No modifications of this
Agreement shall be valid unless made in writing and signed by the
parties hereto. No provision of this Agreement shall be
interpreted to mean that Executive is subject to receiving fewer
benefits that those available to him without reference to this
Agreement.
Section 28. Non-duplication.
In the event that Executive shall perform services for the Bank or
any other direct or indirect subsidiary of the Company, any
compensation or benefits provided to Executive by such other
employer shall be applied to offset the obligations of the Company
hereunder, it being intended that this Agreement set forth the
aggregate compensation and benefits payable to Executive for all
services to the Company and all of its direct or indirect
subsidiaries.
Section 29. Required Regulatory Provision.
Notwithstanding anything in this Agreement to the contrary, any
payments to the Executive by the Company or the Bank, whether
pursuant to this Agreement or otherwise, are subject to and
conditioned upon their compliance with Section 18(k) of the Federal
Deposit Insurance Act, 12 U.S.C. Section 1828(k), and any
regulations promulgated thereunder.
Nevertheless, it is the intention of the Company to be legally
obligated to make all payments due the Executive hereunder and to
meet their regulatory responsibilities to insure that all
obligations of the Company to the Executive are fully discharged.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and Executive has hereunto set his hand, all as of the day
and year first above written.
________________________
Philip S. Messina
ATTEST: HAVEN BANCORP, INC.
By ____________________________ By _____________________
Secretary Name:
Title:
COUNTY OF NASSAU )
) ss.:
STATE OF NEW YORK )
On the 18th day of January in the year 2000 before me, the
undersigned, a notary public in and for the said State personally
appeared PHILIP S. MESSINA personally known to me or proved to me
on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me
that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.
______________________________
Notary Public
COUNTY OF NASSAU )
) ss.:
STATE OF NEW YORK )
On the 18th day of January in the year 2000 before me, the
undersigned, a notary public in and for the said State personally
appeared WILLIAM J. JENNINGS
personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he executed
the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the
individual acted, executed the instrument.
______________________________
Notary Public