Exhibit 10
AMENDATORY AGREEMENT
This Amendatory Agreement ("Agreement") is made effective as of May
28, 1997 by and between Haven Bancorp, Inc. ("Company"), a publicly
held business corporation organized and operating under the laws of
the State of Delaware and having an office at 93-22 Jamaica Avenue,
Woodhaven, New York 11421 ("Company") and Philip S. Messina, an
individual residing at No. 8 Bryan Meadow Path, Fort Salonga, New
York 11768 ("Executive"). Any reference to "Bank" herein shall
mean Columbia Federal Savings Bank, a wholly owned subsidiary of
the Company, or any successor thereto.
Witnesseth:
Whereas, the Company and the Executive entered into an employment
agreement dated September ___, 1995 ("Employment Agreement"); and
Whereas, the Company and Executive desire to amend the Employment
Agreement, effective as of May 28, 1997; and
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:
First. The preamble of the Employment Agreement shall be amended
by deleting the phrases, "and the Bank" where they appear in the
third whereas clause thereof.
Second. Section 3 of the Employment Agreement shall be amended by
deleting the phrases "and the Bank," "and of the Bank Board" and
"and the Bank" where they appear therein and by addition the
following at the end thereof:
In the event that the Executive's employment with the Bank
terminates for any reason, Executive's duties shall be limited
solely to his position as President and Chief Executive Officer of
the Company and he shall not participate, either directly or
indirectly, in the affairs of the Bank.
Third. Section 4 of the Employment Agreement shall be amended by
deleting the parenthetical "(or cause the Bank to pay)" and the
words "or Bank's" from the first sentence thereof, changing the
reference to "$300,000" in the first sentence thereof to" One
hundred Fifty Eight Thousand, Three Hundred Thirty Three Dollars
($158,333)" and by deleting the words "or Bank" from the last
sentence thereof.
Fourth. Section 5 of the Employment Agreement shall be amended by
deleting the phrases "and the Bank", "or the Bank" and "and the
Bank's" from the first sentence thereof.
Fifth. Section 6 of the Employment Agreement shall be amended by
deleting the parenthetical "(or cause the Bank to provide)" from
the first sentence thereof.
Sixth. Section 7(a) of the Employment Agreement shall be amended
by deleting the words "or the Bank" from the first sentence
thereof.
Seventh. Section 9 of the Employment Agreement shall be amended by
deleting the words "or cause the Bank to provide" from the second
sentence thereof.
Eighth. Section 10 of the Employment Agreement shall be amended by
deleting the words "or the Bank" from the first sentence thereof,
by amending Sections 10(a)(ii)(A) and 10(a)(ii)(B) in their
entirety to read as follows:
(A) the failure of the Board to appoint or re-appoint or elect or
re-elect Executive to the office of President and Chief Executive
Officer (or a more senior office) of the Company; or
(B) the failure of the stockholders of the Company to elect or re-
elect Executive as a member of the Board or the failure of the
Board (or nominating committee thereof) to nominate Executive for
such election or re-election; or
and by deleting the words "or the Bank's" and "Bank Board" and the
comma preceding the words "Bank Board" from Section 10(a)(ii)(C).
Ninth. Section 11 of the Employment Agreement shall be amended by
deleting the parenthetical "(or cause the Bank to pay and provide)"
from the first sentence thereof and by deleting the words "and the
Bank" from the last sentence of Sections 11(i) and 11(j) and from
Section 11(k) in each place they appear therein.
Tenth. Section 12 of the Employment Agreement shall be amended by
deleting the words "and the Bank" from section 12(a) in each place
they appear therein and by deleting the parenthetical "(or cause
the Bank to pay)" from Section 12(b).
Eleventh. Section 28 of the Employment Agreement shall be amended
by adding the following sentence at the end thereof:
Notwithstanding the foregoing, the Bank shall not be deemed a party
to this Agreement or obligated to take any actions or make any
payments pursuant to the terms hereof.
Twelfth. The Employment Agreement shall be amended by adding the
following Section 29 in its entirety:
Section 29. Guarantee.
The Company hereby agrees to guarantee the payment by the Bank of
any benefits and compensation to which Mr. Messina is or may be
entitled to under the terms and conditions of the employment
agreement dated May 28, 1997 between the Bank and Mr. Messina.
Thirteenth. The Employment Agreement shall be amended by replacing
the words "Change of Control" wherever they appear therein with the
words "Change in Control."
Fourteenth. Except as expressly amended herein, the Employment
Agreement shall remain in full force and effect.
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.
/s/ Philip S. Messina
-------------------------
Philip S. Messina
--------------------------
ATTEST: Haven Bancorp, Inc.
By: ------------------------
Secretary By: /s/ George S. Worgul
------------------------
Name: George S. Worgul
Title: Chairman of the Board
[Seal]
STATE OF NEW YORK)
: ss.:
COUNTY OF QUEENS )
On this ________ day of May, 1997, before me personally came Philip
S. Messina, to me known, and known to me to be the individual
described in the foregoing instrument, who, being by me duly sworn,
did depose and say that he resides at the address set forth in said
instrument, and that he signed his name to the foregoing
instrument.
________________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF QUEENS )
On this ____ day of May, 1997, before me personally came
___________________________, to me known, who, being by me duly
sworn, did depose and say that he resides at
________________________________________________, that he is a
member of the Board of Directors of Haven Bancorp, the Delaware
corporation described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such seal; that it was so
affixed by order of the Board of Directors of said corporation; and
that he signed his name thereto by like order.
_________________________
Notary Public
Bank Employment Agreement
This Employment Agreement ("Agreement") is made and entered into as
of May 28, 1997, by and between Columbia Federal Savings Bank, a
savings bank organized and operating under the federal laws of the
United States and having an office at 93-22 Jamaica Avenue,
Woodhaven, New York 11421 ("Bank") and Philip S. Messina, an
individual residing at No. 8 Bryan Meadow Path, Fort Salonga, New
York 11768 ("Executive"). Any reference to "Company" herein shall
mean Haven Bancorp, Inc., the Bank's holding company, or any
successor thereto.
W i t n e s s e t h :
Whereas, Executive currently serves the Bank in the capacity of
President and Chief Executive Officer and as a member of the Board
of Directors of the Bank ("Board"); and
Whereas, the Bank 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 event of a pending or threatened Change in Control (as
hereinafter defined); and
Whereas, the Executive is willing to continue to serve the Bank on
the terms and conditions hereinafter set forth;
Now, Therefore, in consideration of the premises and the mutual
covenants and conditions hereinafter set forth, the Bank and
Executive hereby agree as follows:
Section 1. Employment.
The Bank 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 conditions 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 years beginning on the date of this
Agreement. On September 23, 1997, and on each anniversary of such
date thereafter (each, an "Anniversary Date"), the Board shall
review the terms of this Agreement and the Executive's performance
of services hereunder and may, in the absence of objection from the
Executive, approve an extension of the Employment Agreement. In
such event, the Employment Agreement shall be extended to the third
anniversary of the relevant Anniversary Date.
(b) 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 the Anniversary Date on which
the Employment Period (as extended pursuant to Section 2(a) of this
Agreement) is then scheduled to expire.
(c) Nothing in this Agreement shall be deemed to prohibit the Bank
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 Bank and
Executive in the event of any such termination shall be determined
under this Agreement.
Section 3. Duties.
Executive shall serve as President and Chief Executive Officer of
the Bank, and as a member of the Board, having such power,
authority and responsibility and performing such duties as are
prescribed by or under the By-Laws of the Bank 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 Bank
and shall use his best efforts to advance the interests of the
Bank.
Section 4. Cash Compensation.
In consideration for the services to be rendered by Executive
hereunder, the Bank shall pay to Executive a salary at an initial
annual rate of Three Hundred Sixteen Thousand, Six Hundred Sixty
Seven Dollars ($316,667) payable in approximately equal
installments in accordance with the Bank's customary payroll
practices for senior officers. Prior to each Anniversary Date
occurring during the Employment Period, 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 Bank for services
hereunder at such times, 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 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 Bank, in
accordance with the terms and conditions of such employee benefit
plans and programs and compensation plans and programs and
consistent with 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 Bank and the Company 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 Bank 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 Bank shall cause Executive to be covered by and
named as an insured under any policy or contract of insurance
obtained by it to insure directors and officers against personal
liability for acts or omissions in connection with service as an
officer or director of the Bank, or service in other capacities at
the request of 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 Bank.
(b) To the maximum extent permitted under applicable law, during
the Employment Period and for a period of six (6) years thereafter,
the Bank 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 Bank or affiliate thereof. This Section 7(b) shall not be
applicable where Section 20 is applicable.
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 Bank and generally applicable to all similarly situated
executives. The Executive may also serve as an officer or director
of the Company on such terms and conditions as the Bank and the
Company may mutually agree upon, and such service shall not be
deemed to materially interfere with the Executive's performance of
his duties hereunder or otherwise to result in a material breach of
this Agreement.
Section 9. Working Facilities and Expenses.
Executive's principal place of employment shall be at the Bank's
executive offices at the address first above written, or at such
other location within Queens County at which the Bank shall
maintain its principal executive offices, or at such other location
as the Bank and Executive may mutually agree upon. The Bank 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
Bank and necessary or appropriate in connection with the per-
formance of his assigned duties under this Agreement. The Bank
shall reimburse Executive for his ordinary and necessary business
expenses, including, without limitation, all expenses associated
with his business use 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 Bank 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 Bank of an itemized account of such
expenses in such form as the Bank may reasonably require.
Section 10. Termination of Employment.
Executive shall be entitled to the severance benefits described in
Section 11 hereof in the event that his employment with 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) the termination by the Bank of the Executive's employment
hereunder for any reason other than Disability, as defined in
Section 12 hereof, Retirement, as defined in Section 13(d) hereof,
or Cause, as defined in Section 13(a) hereof; or
(ii) Executive's voluntary resignation from employment with the
Bank upon (60) days written notice given within six full calendar
months following:
(A) the failure of the Board to appoint or re-appoint or elect or
re-elect Executive to the office of President and Chief Executive
Officer of the Bank; or
(B) the failure of the stockholders of the Bank to elect or re-
elect Executive as a member of the Board, or the failure of the
Board (or the nominating committee thereof) to nominate Executive
for such election or re-election; or
(C) the expiration of a thirty (30) day period following the date
on which Executive gives written notice to the Bank of its the
material failure, whether by amendment of the Bank's Organization
Certificate or By-laws, action of the Board, or the Bank's
stockholders or otherwise, to vest in Executive the functions,
duties, or responsibilities attributable to the positions described
in Section 3 of this Agreement, unless, during such thirty (30) day
period, the Bank cures such failure in a manner determined by
Executive, in his discretion, to be satisfactory; or
(D) the expiration of a thirty (30) day period following the date
on which Executive gives written notice to the Bank of its material
breach of any term, condition or covenant contained in this
Agreement (including, without limitations, any reduction of
Executive's rate of base salary in effect from time to time, any
change in the terms and conditions of any compensation or benefit
program in which Executive participates, or change in Executive's
fringe benefits and perquisites, which, either individually or
together with other changes, has a material adverse effect on the
aggregate value of his total compensation package), unless, during
such thirty (30) day period, the Bank cures such failure in a
manner determined by Executive, in his discretion, to be
satisfactory; or
(E) the relocation of Executive's principle place of employment by
more than 30 miles from its location at the effective date of this
Agreement or any change in working conditions at such principal
place of employment which Executive, in his reasonable discretion,
determines to be embarrassing, derogatory or otherwise adverse; or
(b) subsequent to a Change in Control, as defined in Section 14,
Executive shall be entitled to the payments and benefits
contemplated by Section 11 in the event of his termination of
employment with the Bank under the circumstances described in
Section 10(a)(i) or (ii) or under any of the following
circumstances:
(i) resignation, voluntary or otherwise, by the Executive at any
time during the Employment Period and within ninety (90) days
following his demotion, loss of title, office or significant
authority or responsibility, or following any material reduction in
any element of his package of compensation and benefits;
(ii) resignation, voluntary or otherwise, by the Executive at any
time during the Employment Period and within ninety (90) days
following (A) any relocation of his principal place of employment
outside of a 30-mile radius of the principal place of employment
immediately prior to the Change in Control that would require a
relocation of his residence in order to be able to commute to such
new place of employment within a commuting time not in excess of
the greater of 60 minutes or the Executive's commuting time prior
to the Change in Control or (B) any material adverse change in
working conditions at such principal place of employment; or
(iii) resignation, voluntary or otherwise, by the Executive at any
time during the Employment Period following the failure of any
successor to the Bank in the Change in Control to include the
Executive in any compensation or benefit program maintained by it
or covering any of its executive officers, unless the Executive is
already covered by a substantially similar plan of the Bank which
is at least as favorable to him.
Section 11. Severance Benefits.
Upon the termination of Executive's employment with the Bank under
the circumstances described in Section 10 of this Agreement, the
Bank 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 constitute 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 Bank, 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 Benefit Plans maintained by 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 in Control, on the date of such Change in
Control, whichever benefits are greater), if Executive had con-
tinued working for 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 Benefit 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 Benefit Plans; and
(d) within thirty (30) days following his termination of
employment with the Bank, 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 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 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 Bank's regular
payroll periods for its officers;
(e) within thirty (30) days following his termination of
employment with 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 Bank, if Executive were 100% vested thereunder and had con-
tinued working for 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 actu-
ally 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 415(b)(2)(E)(v) of the Code
("Applicable Mortality Table") 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 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 Bank, and if Executive were 100% vested
thereunder and had continued working for 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 the
Applicable PBGC Rate;
(g) within thirty (30) days following his termination of
employment with 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 in Control, on the date of such Change in 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 Bank, if Executive were 100% vested
thereunder and continued working for 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 Bank if Executive
had continued working for 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:
(A) the maximum percentage rate at which an award was ever avail-
able to Executive under such incentive compensation plan;
multiplied by
(B) 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 Bank:
such payments to be made (without discounting for early payment)
within thirty (30) days following Executive's termination of
employment;
(i) at the election of Executive made within thirty (30) days fol-
lowing his termination of employment, 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 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, 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
Bank 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 Bank, even if Executive is not vested under such
plan or program;
(j) at the election of Executive made within thirty (30) days fol-
lowing Executive's termination of employment, upon the surrender of
any shares awarded to Executive under any restricted stock plan
maintained by, or covering employees of, 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
Bank 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 Bank, even
if Executive is not vested under such plan;
(k) within thirty (30) days following his termination of
employment with 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 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 PBGC 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, 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
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 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, 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 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 PBGC Rate; and
(m) if Executive's termination of employment 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 in Control
for the Remaining Unexpired Employment Period, including, but not
limited to, use of the automobile provided to Executive by the Bank
immediately prior to the Change in 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 Bank on behalf of
Executive during the Employment Period prior to the Change in
Control.
The Bank and Executive hereby stipulate that the damages which may
be incurred by Executive following any termination of employment
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.
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
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 Bank may terminate Executive's
employment for "Disability" and he shall be entitled to the
payments and benefits provided for under Sections 12(b) and (c).
For purposes of this Section 12(a), "Disability" shall have the
same meaning set forth in the group long-term disability policy or
plan maintained by the Bank for employees as in effect on the
effective date of this Agreement, or if no such plan or policy is
maintained on such date, "Disability" shall mean a condition of
total incapacity, mental or physical, for the performance of the
Executive's stated duties hereunder, which incapacity shall have
been determined, by a doctor selected by the Bank and acceptable to
the Executive or his legal representatives, is likely to be
permanent.
(b) The Bank 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 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 Bank in the same capacity as he was employed
prior to his termination for Disability and pursuant to an
employment agreement between Executive and the Bank; (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 Bank providing disability benefits to the
Executive.
(c) The Bank 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 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 Bank, in the same capacity as he was employed
prior to his termination for Disability and pursuant to an
employment agreement between Executive and the Bank; (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 Bank Liability.
In the event that Executive's employment with the Bank shall
terminate during the Employment Period on account of:
(a) the discharge of Executive for "Cause," which, for purposes of
this Agreement, shall mean personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful
violation of any law, rule or regulation (other than traffic
violations or similar offenses), or final cease and desist order,
or any material breach of this Agreement, in such case as measured
against standards generally prevailing at the relevant time in the
savings and community banking industry; provided, however, that the
Executive shall not be deemed to have been discharged for Cause
unless and until he shall have received a written notice of
termination from the Board, accompanied by a resolution duly
adopted by affirmative vote of a majority of the entire Board at a
meeting called and held for such purpose (after reasonable notice
to the Executive and a reasonable opportunity for the Executive to
make oral and written presentations to the members of the Board, on
his own behalf, or through a representative, who may be his legal
counsel, to refute the grounds for the proposed determination)
finding that in the good faith opinion of the Board grounds exist
for discharging the Executive for Cause; or
(b) Executive's voluntary resignation from employment with the
Bank for reasons other than those specified in Section 10;
(c) Executive's death; or
(d) Executive's "Retirement," which, for purposes of this
Agreement, shall mean Executive's voluntary termination at a time
when he is eligible for a normal retirement benefit under the
qualified defined benefit pension plan or plans of the Bank, or if
no such plan is currently maintained, the Executive's voluntary
termination at or after the attainment of age 65;
then the Bank shall have no further obligations under this Agree-
ment, 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, 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 employ-
ees of, the Bank.
Section 14. Change in Control.
(a) A Change in Control of the Bank ("Change in Control") shall be
deemed to have occurred upon the happening of any of the following
events:
(i) approval by the stockholders of the Bank of a transaction that
would result in the reorganization, merger or consolidation of the
Bank, 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
Bank; 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
Bank;
(ii) the acquisition of all or substantially all of the assets of
the Bank 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 Bank 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 Bank of any
transaction which would result in such an acquisition;
(iii) a complete liquidation or dissolution of the Bank, or
approval by the stockholders of the Bank 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 Bank to serve as a
member of the Board, but only if nominated for election by affir-
mative 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), (b), (c)
or (d) if the term "Company" were substituted for the term "Bank"
therein.
In no event, however, shall a Change in Control be deemed to have
occurred as a result of any acquisition of securities or assets of
the Bank, the Company, or a subsidiary of either of them, by the
Bank, the Company, or a subsidiary of either of them, or by any
employee benefit plan maintained by any of them. For purposes of
this Section 14, the term "person" shall have the meaning assigned
to it under Section 13(d)(3) or 14(d)(2) of the Exchange Act.
(b) Upon a Change in Control, the Bank 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. Covenant Not To Compete.
Executive hereby covenants and agrees that, in the event of his
termination of employment with the Bank 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 Bank
(or, if less, for the Remaining Unexpired Employment Period),
Executive shall not, without the written consent of the Bank,
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 Bank in any city, town or county in which
the Bank 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 15 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 Bank on
substantially the same terms and conditions and (b) the Bank
declines to accept such offer within ten (10) days after such
notice is given.
Section 16. Confidentiality.
Unless Executive obtains the prior written consent of the Bank,
Executive shall keep confidential and shall refrain from using for
the benefit of himself, or any person or entity other than the Bank
or any entity of which the Bank is a subsidiary, any material
document or information obtained from the Bank, 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 16 shall prevent
Executive, with or without the Bank'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
applicable law.
Section 17. 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 Bank or by Executive, shall
have no effect on the rights and obligations of the parties hereto
under 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 Bank
from time to time.
Section 18. 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 Bank 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 substan-
tially all of the assets and business of the Bank may be sold or
otherwise transferred. Failure of the Bank to obtain from any
successor its express written assumption of the Bank'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 19. 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 personal-
ly, 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 Bank:
Columbia Federal Savings Bank
93-22 Jamaica Avenue
Woodhaven, New York 11421
Attention: Chairman of the Compensation Committee
of the Board of Directors
with a copy to:
Thacher Proffitt & Wood
Two World Trade Center
New York, New York 10048
Attention: Lisa M. Miller, Esq.
Section 20. Indemnification for Attorneys' Fees.
The Bank 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; provided, however, that the Executive shall have
substantially prevailed on the merits pursuant to a judgment,
decree, or order of a court of competent jurisdiction or of an
arbitrator in an arbitration proceeding, or in a settlement. For
purposes of this Agreement, any settlement agreement which provides
for payment of any amounts in settlement of the Bank'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 21. 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 22. 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 23. 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 24. 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 25. 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 26. 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 rep-
resentations relating to the subject matter hereof, including all
terms of the Prior Agreement between the Bank 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 than those available to him without
reference to this Agreement.
Section 27. Required Regulatory Provisions.
The following provisions are included for the purpose of complying
with various laws, rules and regulations applicable to the Bank:
(a) Notwithstanding anything herein contained to the contrary, in
no event shall the aggregate amount of compensation payable to the
Executive under Section 11 hereof (exclusive of amounts described
in Sections 11(a) and (b)) exceed the lesser of (i) three times the
Executive's average annual total compensation for the last five
consecutive calendar years to end prior to his termination of
employment with the Bank (or for his entire period of employment
with the Bank if less than five calendar years) and (ii) the
maximum amount that may be paid without producing an "excess
parachute payment" (as such term is defined in section 280G of the
Code), the applicability of such provision to the Executive and any
such maximum amount to be determined in good faith by the firm of
independent certified public accountants regularly retained to
audit the Bank's books and records.
(b) Notwithstanding anything herein contained to the contrary, any
payments to the Executive by 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
("FDI Act"), 12 U.S.C. Section 1828(k), and any regulations
promulgated thereunder.
(c) Notwithstanding anything herein contained to the contrary, if
the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the affairs of the
Bank pursuant to a notice served under Section 8(e)(3) or 8(g)(1)
of the FDI Act, 12 U.S.C. Section 1818(e)(3) or 1818(g)(1), the
Bank's obligations under this Agreement shall be suspended as of
the date of service of such notice, unless stayed by appropriate
proceedings. If the charges in such notice are dismissed, the
Bank, in its discretion, may (i) pay to the Executive all or part
of the compensation withheld while the Bank's obligations hereunder
were suspended and (ii) reinstate, in whole or in part, any of the
obligations which were suspended.
(d) Notwithstanding anything herein contained to the contrary, if
the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order
issued under Section 8(e)(4) or 8(g)(1) of the FDI Act, 12 U.S.C.
Section 1818(e)(4) or (g)(1), all prospective obligations of the
Bank under this Agreement shall terminate as of the effective date
of the order, but vested rights and obligations of the Bank and the
Executive shall not be affected.
(e) Notwithstanding anything herein contained to the contrary, if
the Bank is in default (within the meaning of Section 3(x)(1) of
the FDI Act, 12 U.S.C. Section 1813(x)(1), all prospective
obligations of the Bank under this Agreement shall terminate as of
the date of default, but vested rights and obligations of the Bank
and the Executive shall not be affected.
(f) Notwithstanding anything herein contained to the contrary, all
prospective obligations of the Bank hereunder shall be terminated,
except to the extent that a continuation of this Agreement is
necessary for the continued operation of the Bank: (i) by the
Director of the Office of Thrift Supervision ("OTS") or his
designee or the Federal Deposit Insurance Corporation ("FDIC"), at
the time the FDIC enters into an agreement to provide assistance to
or on behalf of the Bank under the authority contained in Section
13(c) of the FDI Act, 12 U.S.C. Section 1823(c); (ii) by the
Director of the OTS or his designee at the time such Director or
designee approves a supervisory merger to resolve problems related
to the operation of the Bank or when the Bank is determined by such
Director to be in an unsafe or unsound condition. The vested
rights and obligations of the parties shall not be affected.
If and to the extent that any of the foregoing provisions shall
cease to be required by applicable law, rule or regulation, the
same shall become inoperative as though eliminated by formal
amendment of this Agreement.
In Witness Whereof, the Bank has caused this Agreement to be
executed and Executive has hereunto set his hand, all as of the day
and year first above written.
/s/ Philip S. Messina
------------------------
Philip S. Messina
ATTEST: Columbia Federal Savings Bank.
By ________________________
Secretary By /s/ George S. Worgul
_______________________
Name: George S. Worgul
Title: Chairman of the Board
[Seal]
STATE OF NEW YORK )
: ss.:
COUNTY OF QUEENS )
On this ________ day of ______________, 1997, before me personally
came Philip S. Messina, to me known, and known to me to be the
individual described in the foregoing instrument, who, being by me
duly sworn, did depose and say that he resides at the address set
forth in said instrument, and that he signed his name to the
foregoing instrument.
___________________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF QUEENS )
On this ________ day of _____________, 1997, before me personally
came ___________________________, to me known, who, being by me
duly sworn, did depose and say that he resides at
________________________________________________, that he is a
member of the Board of Directors of Columbia Federal Savings Bank.,
the savings bank described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such seal; that it was so
affixed by order of the Board of Directors of said savings bank;
and that he signed his name thereto by like order.
___________________________
Notary Public
Second Amendment to Bank Change in Control Agreement
This Second Amendment to Bank Change in Control Agreement, made and
entered in to as of May 28, 1997 by and between Columbia Federal
Savings Bank, a savings bank organized and operating under the
federal laws of the United States and having an office at 93-22
Jamaica Avenue, Woodhaven, New York 11421 ("Bank") and
_________________, an individual residing at
______________________________________________________________ (the
"Executive") amends the Change in Control Agreement dated September
23, 1993 between the Bank and the Executive ("Agreement") as
follows:
First. Section 2(a) of the Agreement shall be amended by replacing
the last sentence thereof in its entirety with the following:
For purposes of this Agreement, Executive's voluntary
termination of employment shall mean his resignation following his
demotion, a reduction in his title, office or significant
authority, a reduction in his annual compensation or benefits or a
relocation of his principal place of employment by more than 30
miles from its location immediately prior to the Change in Control.
Second. Section 2(b) of the Agreement shall be amended in its
entirety to read as follows:
(b) Definition of a Change in Control. A "Change in Control"
shall mean a change in control of a nature that: (i) would be
required to be reported in response to Item 1(a) of the Company's
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 of Control
of the Bank or Company within the meaning of the Change in Bank
Control Act and the rules and regulations promulgated thereunder by
the appropriate federal banking agency, as in effect on the date
hereof; or (iii) results in a transaction requiring prior Federal
Reserve Board ("FRB") approval under the Bank Holding Company Act
of 1956 and the regulations promulgated thereunder by the FRB, as
in effect on the date hereof; or (iv) results in a transaction
requiring prior Office of Thrift Supervision ("OTS") approval under
the Home Owners' Loan Act and the regulations promulgated
thereunder by the OTS, as in effect on the date hereof. Without
limiting the foregoing, a Change in Control shall be deemed to have
occurred at such time as: (A) any "person" (as the term is used in
Section 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
Company representing 20% or more of the Bank's or the Company's
outstanding securities, except for any securities of the Bank
purchased by the 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; (B) individuals who
constitute the Board of Directors of the Company or the Board on
the date hereof (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof, provided that any person
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 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; (C) a plan of reorganization, merger,
consolidation, sale of all or substantially all the assets of the
Bank or the Company becomes effective or a similar transaction
occurs in which the Bank or Company is not the resulting entity;
(D) a plan of reorganization, merger or consolidation of the
Company or Bank or a similar transaction with one or more
corporations, which will result in the outstanding shares of the
class of securities then subject to such plan or transaction being
exchanged for or converted into cash or property or securities not
issued by the Bank or the Company, is approved by the stockholders
of the Company in response to a proxy statement that was
distributed, soliciting proxies from stockholders of the Company,
by someone other than the current management of the Company, or (E)
20% or more of the voting securities of the Bank or Company then
outstanding are tendered and accepted by an offeror as of the
closing of a tender offer for such securities.
Third. Section 2(c) shall be amended by deleting the fourth
sentence thereof.
Fourth. Sections 3(a) and (b) of the Agreement shall be amended in
their entirety to read as follows:
(a) Upon the occurrence of a Change in Control, followed at any
time during the term of this Agreement by the voluntary or
involuntary termination of the Executive's employment with the
Bank, other than for Termination for Cause, the Bank shall pay the
Executive, or in the event of Executive's subsequent death,
Executive's beneficiary or beneficiaries, or Executive's estate, as
the case may be, as severance pay or liquidated damages, or both,
a sum equal to the following:
(i) within thirty (30) days following Executive's termination of
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 the Bank during the two (2) year period immediately
following the Executive's Date of Termination at the annual rate of
salary in effect for Executive immediately prior to the Change of
Control or Executive's Date of Termination (whichever is greater),
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"), com-
pounded using the compounding period corresponding to the Bank's
regular payroll periods for its officers;
(ii) within thirty (30) days following Executive's termination of
employment, a lump sum payment in an amount equal to the excess, if
any, of:
(A) 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 Bank, if Executive were 100% vested thereunder and had con-
tinued working for the Bank for the two (2) year period following
Executive's Date of Termination, such benefits to be determined as
of Date of Termination by adding to the service actually recognized
under such plans an additional period equal to the two (2) year
period following Executive's Date of Termination and by including
in the compensation recognized under such plans, all the amounts
payable under Sections 3(a)(i) and (v) to the extent such amounts
would have been credited under such plans had they been paid over
such two (2) year period; over
(B) the present value of the benefits to which Executive is actu-
ally entitled under such defined benefit pension plans as of
Executive's Date of Termination;
where such present values are to be determined using the mortality
tables prescribed under Section 415(b)(2)(E)(v) 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");
(iii) within thirty (30) days following Executive's termination of
employment, 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 Bank, if Executive were 100% vested thereunder
and had continued working for the Bank during the two (2) year
period following Executive's Date of Termination at the annual rate
of compensation in effect for Executive immediately prior to the
Change in Control or Executive's Date of Termination (whichever is
greater), 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 the
Applicable PBGC Rate;
(iv) within thirty (30) days following Executive's termination of
employment, a lump sum payment in an amount equal to the fair
market value (determined as of Executive's Date of Termination, or,
if Executive's 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 Bank, if Executive were 100% vested thereunder and
continued working for the Bank during the two (2) year period
following Executive's Date of Termination at the annual rate of
compensation in effect for him immediately prior to the Change in
Control or Executive's Date of Termination (whichever is greater);
(v) 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 Bank, if
Executive had continued working for the Bank during the two (2)
year period following Executive's Date of Termination and had
earned the maximum bonus or incentive award in each calendar year
that ends during such period, such payments to be equal to the
product of:
(A) the maximum percentage rate at which an award was ever
available to Executive under such incentive compensation plan;
multiplied by
(B) the salary that would have been paid to Executive during each
such calendar year at the annual rate of salary in effect for
Executive immediately prior to the Change in Control or Executive's
Date of Termination (whichever is greater);
such payments to be made (without discounting for early payment)
within thirty (30) days following Executive's termination of
employment;
(b) Upon the occurrence of a Change in Control, followed at any
time during the term of this Agreement by the Executive's voluntary
or involuntary termination of employment, other than for
Termination for Cause, the Bank shall provide the following for the
two (2) year period following Executive's Date of Termination:
(i) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long term
disability insurance benefits, if and to the extent necessary to
provide coverage for Executive and Executive's family equivalent to
the coverage to which Executive would be entitled under the
applicable insurance benefit plans of the Bank as in effect on
Executive's Date of Termination or on the date of such Change of
Control, whichever benefits are greater; and
(ii) the fringe benefits and perquisites made available or
provided to Executive by the Bank immediately prior to the Change
of Control including, but not limited to, use of any automobile
provided to Executive by 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 which expenses were paid
by the Bank on behalf of Executive prior to the Change of Control.
Fifth. Except as expressly amended herein, the Agreement shall
remain in full force and effect.
In Witness Whereof, the Company and the Bank have caused this
Second Amendment to Bank Change in Control Agreement to be executed
and Executive has hereunto set Executive's hand, all as of the day
and year first above written.
/s/ Catherine Califano
--------------------------
[Name] Catherine Califano
ATTEST: Columbia Federal Savings Bank
By /s/ Joseph W. Rennhack By /s/ Philip S. Messina
------------------------ ----------------------
Name: Joseph W. Rennhack Philip S. Messina
Title: Sr. Vice President/Secretary President and Chief Executive
Officer
[Seal]
ATTEST: Haven Bancorp, Inc.
By /s/ Joseph W. Rennhack By /s/ Philip S. Messina
------------------------ ------------------------
Name: Joseph W. Rennhack Philip S. Messina
Title: Sr. Vice President/Secretary President and Chief
Executive Officer
STATE OF NEW YORK )
: ss.:
COUNTY OF QUEENS )
On this ________ day of ______________, 1997, before me personally
came _______________, to me known, and known to me to be the
individual described in the foregoing instrument, who, being by me
duly sworn, did depose and say that (s)he resides at the address
set forth in said instrument, and that (s)he signed his/her name to
the foregoing instrument.
_______________________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF QUEENS )
On this ________ day of ______________, 1997, before me personally
came Philip S. Messina, to me known, who, being by me duly sworn,
did depose and say that he resides at No. 8 Bryan Meadow Path, Fort
Salonga, New York 11768, that he is President and Chief Executive
Officer of Columbia Federal Savings Bank, the savings bank de-
scribed in and which executed the foregoing instrument; that he
knows the seal of said savings bank; that the seal affixed to said
instrument is such seal; that it was so affixed by order of the
Board of Directors of said savings bank; and that he signed his
name thereto by like order.
__________________________
Notary Public
Schedule of Individuals
Each of the following individuals has entered into a Second
Amendment to Bank Change in Control Agreement:
Thomas J. Seery
Gerard H. McGuirk
Catherine Califano
Joseph W. Rennhack
Third Amendment to Company Change in Control Agreement
This Third Amendment to Company Change in Control Agreement, made
and entered in to as of May 28, 1997 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
office at 93-22 Jamaica Avenue, Woodhaven, New York 11421 (the
"Company") and, __________________ an individual residing at
_____________________________________ (the "Executive") amends the
Change in Control Agreement dated September 23, 1993 between the
Company and the Executive, as amended by the Amendment to Change in
Control Agreement dated as of November 18, 1994 and the Second
Amendment to Change in Control Agreement dated September ___, 1995
("Agreement") as follows:
First. Section 2(b) of the Agreement shall be amended in its
entirety to read as follows:
(b) Definition of a Change in Control. A "Change in Control" shall
mean a change in control of a nature that: (i) would be required to
be reported in response to Item 1(a) of the Company's 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 of Control of the Bank
or Company within the meaning of the Change in Bank Control Act and
the rules and regulations promulgated thereunder by the appropriate
federal banking agency, as in effect on the date hereof; or (iii)
results in a transaction requiring prior Federal Reserve Board
("FRB") approval under the Bank Holding Company Act of 1956 and the
regulations promulgated thereunder by the FRB, as in effect on the
date hereof; or (iv) results in a transaction requiring prior
Office of Thrift Supervision ("OTS") approval under the Home
Owners' Loan Act and the regulations promulgated thereunder by the
OTS, as in effect on the date hereof. Without limiting the
foregoing, a Change in Control shall be deemed to have occurred at
such time as: (A) any "person" (as the term is used in Section
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 Company
representing 20% or more of the Bank's or the Company's outstanding
securities, except for any securities of the Bank purchased by the
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; (B) individuals who constitute the Board
of Directors of the Bank or the Board on the date hereof (the
"Incumbent Board") cease for any reason to constitute at least a
majority thereof, provided that any person 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 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;
(C) a plan of reorganization, merger, consolidation, sale of all or
substantially all the assets of the Bank or the Company becomes
effective or a similar transaction occurs in which the Bank or
Company is not the resulting entity; (D) a plan of reorganization,
merger or consolidation of the Company or Bank or a similar
transaction with one or more corporations, which will result in the
outstanding shares of the class of securities then subject to such
plan or transaction being exchanged for or converted into cash or
property or securities not issued by the Bank or the Company, is
approved by the stockholders of the Company in response to a proxy
statement that was distributed, soliciting proxies from
stockholders of the Company, by someone other than the current
management of the Company, or (E) 20% or more of the voting
securities of the Bank or Company then outstanding are tendered and
accepted by an offeror as of the closing of a tender offer for such
securities.
Second. The first paragraph of Section 3(a) of the Agreement shall
be amended by deleting the words "and/or the Bank" and the
parenthetical "(or cause the Bank to pay)" where they appear
therein.
Third. The first paragraph of Section 3(b) of the Agreement shall
be amended by deleting the parenthetical "(or cause the Bank to
provide)" where it appears therein.
Fourth. Except as expressly amended herein, the Agreement shall
remain in full force and effect.
In Witness Whereof, the Company has caused this Third Amendment to
Company Change in Control Agreement to be executed and Executive
has hereunto set Executive's hand, all as of the day and year
first above written.
_______________________
ATTEST: Haven Bancorp, Inc.
By /s/ Thomas J. Seery By /s/ Philip S. Messina
----------------------- -----------------------
Name: Thomas J. Seery Philip S. Messina
Title: Executive Vice President President and Chief Executive
Officer
[Seal]
STATE OF NEW YORK )
: ss.:
COUNTY OF QUEENS )
On this ________ day of ______________, 1997, before me personally
came __________________, to me known, and known to me to be the
individual described in the foregoing instrument, who, being by me
duly sworn, did depose and say that he resides at the address set
forth in said instrument, and that he signed his name to the
foregoing instrument.
_________________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF QUEENS )
On this ___ day of ______________, 1997, before me personally came
Philip S. Messina, to me known, who, being by me duly sworn, did
depose and say that he resides at No. 8 Bryan Meadow Path, Fort
Salonga, New York 11768, that he is President and Chief Executive
Officer of Haven Bancorp, Inc., the corporation described in and
which executed the foregoing instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is such
seal; that it was so affixed by order of the Board of Directors of
said corporation; and that he signed his name thereto by like
order.
___________________________
Notary Public
Schedule of Individuals
Each of the following individuals has entered into a Third
Amendment to Company Change in Control Agreement:
Thomas J. Seery
Gerard H. McGuirk
Catherine Califano
Joseph W. Rennhack
BANK CHANGE IN CONTROL AGREEMENT
This AGREEMENT is made effective as of May 28, 1997 by and between
Columbia Federal Savings Bank ("Bank"), a federally chartered
savings institution, with an office at 93-22 Jamaica Avenue,
Woodhaven, New York 11421, and Andrew L. Kaplan (the "Executive"),
an individual residing at 4 North Gate Drive, Greenlawn, New York
11740. The Bank is a wholly owned subsidiary of Haven Bancorp, Inc.
(the "Company"), a corporation organized under the laws of the
State of Delaware.
WHEREAS, the Bank and Columbia Investment Services ("CIS"), an
investment services company which is a wholly owned subsidiary of
the Bank, recognize the substantial contribution Executive has made
to the Bank and CIS and wish to protect his position therewith for
the period provided in this Agreement; and
WHEREAS, Executive has been elected to, and has agreed to serve in
the position of President of CIS and an employee of the Bank,
positions of substantial responsibility;
NOW, THEREFORE, in consideration of the contribution and
responsibilities of Executive, and upon the other terms and
conditions hereinafter provided, the parties hereto agree as
follows:
1. TERM OF AGREEMENT.
The term of this Agreement shall be deemed to have commenced as of
the date first above written and shall continue for a period of two
years thereafter; provided, however, that on September 23, 1997,
the Board of Directors of the Bank ("Board") may extend this
Agreement to the second anniversary of such date and continuing at
each anniversary of such date thereafter, the Board may extend this
Agreement for an additional year. The Board will review the
Agreement and the Executive's performance annually for purposes of
determining whether to extend the Agreement, and the results
thereof shall be included in the minutes of the Board's meeting.
2. PAYMENTS TO EXECUTIVE UPON CHANGE IN CONTROL.
(a) Upon the occurrence of a Change in Control (as herein defined)
followed at any time during the term of this Agreement by the
voluntary or involuntary termination of Executive's employment,
other than for Cause, as defined in Section 2(c) hereof, the
provisions of Section 3 shall apply. For purposes of this
Agreement, Executive's voluntary termination of employment shall
mean his resignation following his demotion, a reduction in his
title, office or significant authority, a reduction in his annual
compensation or benefits or a relocation of his principal place of
employment by more than 30 miles from its location immediately
prior to the Change in Control.
(b) Definition of a Change in Control. A "Change in Control" shall
mean a change in control of a nature that: (i) would be required to
be reported in response to Item 1(a) of the Company's 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 of Control of the Bank
or Company within the meaning of the Change in Bank Control Act and
the rules and regulations promulgated thereunder by the appropriate
federal banking agency, as in effect on the date hereof; or (iii)
results in a transaction requiring prior Federal Reserve Board
("FRB") approval under the Bank Holding Company Act of 1956 and the
regulations promulgated thereunder by the FRB, as in effect on the
date hereof; or (iv) results in a transaction requiring prior
Office of Thrift Supervision ("OTS") approval under the Home
Owners' Loan Act and the regulations promulgated thereunder by the
OTS, as in effect on the date hereof. Without limiting the
foregoing, a Change in Control shall be deemed to have occurred at
such time as: (A) any "person" (as the term is used in Section
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 Company
representing 20% or more of the Bank's or the Company's outstanding
securities, except for any securities of the Bank purchased by the
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; (B) individuals who constitute the Board
of Directors of the Company or the Board on the date hereof (the
"Incumbent Board") cease for any reason to constitute at least a
majority thereof, provided that any person 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 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;
(C) a plan of reorganization, merger, consolidation, sale of all or
substantially all the assets of the Bank or the Company becomes
effective or a similar transaction occurs in which the Bank or
Company is not the resulting entity; (D) a plan of reorganization,
merger or consolidation of the Company or Bank or a similar
transaction with one or more corporations, which will result in the
outstanding shares of the class of securities then subject to such
plan or transaction being exchanged for or converted into cash or
property or securities not issued by the Bank or the Company, is
approved by the stockholders of the Company in response to a proxy
statement that was distributed, soliciting proxies from
stockholders of the Company, by someone other than the current
management of the Company, or (E) 20% or more of the voting
securities of the Bank or Company then outstanding are tendered and
accepted by an offeror as of the closing of a tender offer for such
securities.
(c) Executive shall not have the right to receive termination
benefits pursuant to Section 3 hereof upon Termination for Cause.
The term "Termination for Cause" shall mean termination because of
the Executive's personal dishonesty, incompetence, willful
misconduct, any breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of
any law, rule, or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order, or material
breach of any material provision of this Agreement. In determining
incompetence, the acts or omissions shall be measured against
standards generally prevailing in the savings institutions
industry. 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 copy of a resolution duly
adopted by the affirmative vote of not less than a majority of the
Board of the Bank at a meeting of such Board called and held for
that purpose (after reasonable notice to the Executive and an
opportunity for him, together with counsel, to be heard before the
Board at such meeting and which such meeting shall be held not more
than 30 days from the date of notice during which period the
Executive may be suspended with pay), finding that in the good
faith opinion of the Board, the 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 or limited rights granted
to Executive under any stock option plan or any unvested awards
granted under any other stock benefit plan of the Bank or any
subsidiary thereof, shall become null and void effective upon
Executive's receipt of Notice of Termination for Cause pursuant to
Section 4 hereof, and shall not be exercisable by Executive at any
time subsequent to such Termination for Cause.
3. TERMINATION BENEFITS.
(a) Upon the occurrence of a Change in Control, followed at any
time during the term of this Agreement by the voluntary or
involuntary termination of the Executive's employment with the Bank
and/or CIS, other than for Termination for Cause, the Bank shall
pay (or shall cause CIS to pay) the 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 following:
(i) within thirty (30) days following his termination of
employment, 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 Bank and CIS during the two (2) year
period immediately following the Executive's Date of Termination at
the annual rate of salary in effect for Executive immediately prior
to the Change of Control or Executive's Date of Termination
(whichever is greater), where such present value is to be deter-
mined 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 Bank's regular payroll periods for its
officers;
(ii) within thirty (30) days following his termination of
employment, a lump sum payment in an amount equal to the excess, if
any, of:
(A) 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 Bank or CIS, if Executive were 100% vested thereunder and
had continued working for the Bank and CIS for the two (2) year
period following Executive's Date of Termination, such benefits to
be determined as of the Date of Termination by adding to the
service actually recognized under such plans an additional period
equal to the two (2) year period following Executive's Date of
Termination and by including in the compensation recognized under
such plans, all the amounts payable under Sections 3(a)(i) and (v)
to the extent such amounts would have been credited under such
plans had they been paid over such two (2) year period; over
(B) the present value of the benefits to which Executive is actu-
ally entitled under such defined benefit pension plans as of his
Date of Termination;
where such present values are to be determined using the mortality
tables prescribed under Section 415(b)(2)(E)(v) 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");
(iii) within thirty (30) days following his termination of
employment, 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 Bank or CIS, if Executive were 100% vested
thereunder and had continued working for the Bank and CIS during
the two (2) year period following Executive's Date of Termination
at the annual rate of compensation in effect for Executive
immediately prior to the Change in Control or Executive's Date of
Termination (whichever is greater), 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 the Applicable PBGC Rate;
(iv) within thirty (30) days following his termination of
employment, a lump sum payment in an amount equal to the fair
market value (determined as of his Date of Termination, 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 Bank or
CIS, if Executive were 100% vested thereunder and continued working
for the Bank and CIS during the two (2) year period following
Executive's Date of Termination at the annual rate of compensation
in effect for him immediately prior to the Change in Control or
Executive's Date of Termination (whichever is greater);
(v) 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 Bank or CIS, if
Executive had continued working for the Bank and CIS during the two
(2) year period following Executive's Date of Termination and had
earned the maximum bonus or incentive award in each calendar year
that ends during such period, such payments to be equal to the
product of:
(A) the maximum percentage rate at which an award was ever
available to Executive under such incentive compensation plan;
multiplied by
(B) the salary that would have been paid to Executive during each
such calendar year at the annual rate of salary in effect for
Executive immediately prior to the Change in Control or Executive's
Date of Termination (whichever is greater);
such payments to be made (without discounting for early payment)
within thirty (30) days following Executive's termination of
employment;
(b) Upon the occurrence of a Change in Control, followed at any
time during the term of this Agreement by the Executive's voluntary
or involuntary termination of employment, other than for
Termination for Cause, the Bank shall provide (or shall cause CIS
to provide) the following for the two (2) year period following
Executive's Date of Termination:
(i) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long term
disability insurance benefits, 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
insurance benefit plans of the Bank and CIS as in effect on his
Date of Termination or on the date of such Change of Control; and
(ii) the fringe benefits and perquisites made available or
provided to Executive by the Bank and CIS immediately prior to the
Change of Control.
4. NOTICE OF TERMINATION.
(a) Any purported termination by the Bank, CIS 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) "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 or her duties on a full-time basis during
such thirty (30) day period), and (B) if his or her employment is
terminated for any other reason, the date specified in the Notice
of Termination which, in the instance of Termination for Cause,
shall be immediate. For purposes of this Section 4(b),
"Disability" shall have the same meaning set forth in the group
long-term disability policy or plan maintained by the Bank for
employees as in effect on the effective date of this Agreement, or
if no such plan or policy is maintained on such date, "Disability"
shall mean a condition of total incapacity, mental or physical, for
the performance of the Executive's stated duties hereunder, which
incapacity shall have been determined, by a doctor selected by the
Bank and acceptable to the Executive or his legal representatives,
is likely to be permanent.
5. SOURCE OF PAYMENTS.
It is intended by the parties hereto that all payments provided in
this Agreement shall be paid in cash or check from the general
funds of the Bank or CIS. The Company guarantees payment and
provision of all amounts and benefits due hereunder to the
Executive and, if such amounts and benefits due from the Bank or
CIS are not timely paid or provided by the Bank or CIS, such
amounts and benefits shall be paid or provided by the Company.
6. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
This Agreement contains the entire understanding between the
parties hereto and supersedes any prior agreement between the Bank
and the 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 the Executive is
subject to receiving fewer benefits than those available to him
without reference to this Agreement.
7. 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, 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.
(b) This Agreement shall be binding upon, and inure to the benefit
of, the Executive and the Bank and their respective successors and
assigns.
8. 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 or as
to any act other than that specifically waived.
9. REQUIRED REGULATORY PROVISIONS.
(a) Notwithstanding anything herein contained to the contrary, in
no event shall the aggregate amount of compensation payable to the
Executive under Section 3 hereof exceed the lesser of (i) three
times the Executive's average annual total compensation for the
last five consecutive calendar years to end prior to his
termination of employment with the Bank (or for his entire period
of employment with the Bank if less than five calendar years) and
(ii) the maximum amount that may be paid without producing an
"excess parachute payment" (as such term is defined in section 280G
of the Code), the applicability of such provision to the Executive
and any such maximum amount to be determined in good faith by the
firm of independent certified public accountants regularly retained
to audit the Bank's books and records.
(b) The Bank may terminate the Executive's employment at any time,
but such termination, other than Termination for Cause, shall not
prejudice the Executive's right to compensation or other benefits
under this Agreement. The Executive shall not have the right to
receive compensation or other benefits for any period after
Termination for Cause as defined in Section 2 hereinabove.
(c) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's affairs
by a notice served under Section 8(e)(3) or 8(g)(1) of the Federal
Deposit Insurance Act (12 U.S.C. Section 1818(e)(3) or (g)(1)), the
obligations of the Bank and CIS under this contract shall be
suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Bank
may, in its discretion, (i) pay the Executive all or part of the
compensation withheld while their contract obligations were
suspended and (ii) reinstate (in whole or in part) any of the
obligations which were suspended.
(d) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order
issued under Section 8(e)(4) or 8(g)(1) of the Federal Deposit
Insurance Act (12 U.S.C. Section 1818(e)(4) or (g)(1)), all
obligations of the Bank or CIS under this contract shall terminate
as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
(e) If the Bank is in default (as defined in Section 3(x)(1) (12
U.S.C. 1813(x)(1)) of the Federal Deposit Insurance Act), all
obligations of the Bank or CIS under this contract shall terminate
as of the date of default, but this paragraph shall not affect any
vested rights of the contracting parties.
(f) All obligations of the Bank or CIS under this contract shall
be terminated, except to the extent determined that continuation of
the contract is necessary for the continued operation of the
institution, (i) by the Federal Deposit Insurance Corporation
("FDIC"), at the time FDIC enters into an agreement to provide
assistance to or on behalf of the Bank under the authority
contained in Section 13(c) (12 U.S.C. Section 1823(c)) of the
Federal Deposit Insurance Act; or (ii) by the Office of Thrift
Supervision ("OTS") at the time the OTS or its District Director
approves a supervisory merger to resolve problems related to the
operations of the Bank or when the Bank is determined by the OTS or
FDIC to be in an unsafe or unsound condition. Any rights of the
parties that have already vested, however, shall not be affected by
such action.
(g) Any payments made to the Executive pursuant to this Agreement,
or otherwise, are subject to and conditioned upon compliance with
12 U.S.C. Section 1828(k).
10. REINSTATEMENT OF BENEFITS UNDER SECTION 9(b).
In the event the Executive is suspended and/or temporarily
prohibited from participating in the conduct of the Bank's affairs
by a notice described in Section 9(b) hereof (the "Notice") during
the term of this Agreement and a Change in Control, as defined
herein, occurs, the Bank or CIS will assume their obligation to
pay, and the Executive will be entitled to receive, all of the
termination benefits provided for under Section 3 of this Agreement
upon the Bank's receipt of a dismissal of charges in the Notice.
11. 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.
12. 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.
13. GOVERNING LAW.
The validity, interpretation, performance, and enforcement of this
Agreement shall be governed by New York law to the extent not
preempted by Federal law.
14. 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 employee 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.
15. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by the Executive
pursuant to any dispute or question of interpretation relating to
this Agreement shall be paid or reimbursed by the Bank if the
Executive is successful on the merits pursuant to a legal judgment,
arbitration or settlement, which payments are guaranteed by the
Company pursuant to Section 5 hereof.
16. INDEMNIFICATION.
The Bank shall provide (or cause CIS to provide) Executive
(including his or her legal representatives, successors and
assigns) with coverage under a standard directors' and officers'
liability insurance policy at their expense, or in lieu thereof,
shall indemnify Executive (including his or her legal
representatives, successors and assigns) for reasonable costs and
expenses incurred by Executive in defending or settling any
judicial or administrative proceeding, or threatened proceeding,
whether civil, criminal or otherwise, including any appeal or other
proceeding for review.
Indemnification by the Bank (or by CIS) shall be made only upon the
final judgment on the merits in the favor of the Executive, in case
of settlement, in case of final judgment against Executive or in
the case of final judgment in favor of Executive other than on the
merits, if a majority of the disinterested directors of the Bank
determine Executive was acting in good faith within the scope of
Executive's employment or authority in accordance with 12 C.F.R.
section 545.121(c)(iii).
Any such indemnification of Executive must conform with the notice
provisions of 12 C.F.R. part 545.121(c)(iii) to indemnify Executive
to the fullest for such expenses and liabilities to include, but
not be limited to, judgments, court costs and attorneys' fees and
the cost of reasonable settlements, such settlements to be approved
by the Board, if such action is brought against Executive in his or
her capacity as an officer or director of the Bank, however, shall
not extend to matters as to which Executive is finally adjudged to
be liable for willful misconduct in the performance of his or her
duties.
17. SUCCESSORS TO THE BANK.
The Bank and the Company shall require any successor or assignee,
whether direct or indirect, by purchase, merger, consolidation or
otherwise, to all or substantially all the business or assets of
the Bank or the Company, expressly and unconditionally to assume
and agree to perform the obligations of the Bank or CIS under this
Agreement, in the same manner and to the same extent that the Bank
and the Company would be required to perform if no such succession
or assignment had taken place.
18. SIGNATURES.
IN WITNESS WHEREOF, Columbia Federal Savings Bank and Haven
Bancorp, Inc. have caused this Agreement to be executed and their
respective seals to be affixed hereunto by their duly authorized
officers and Executive has signed this Agreement, on the
day of , 1997.
ATTEST: Columbia Federal Savings Bank
By: /s/ Joseph W. Rennhack By: /s/ Philip S. Messina
------------------------ -------------------------
Joseph W. Rennhack Philip S. Messina
Secretary President and Chief
Executive Officer
[SEAL]
ATTEST: Haven Bancorp, Inc.
/s/ Joseph W. Rennhack By: /s/ Philip S. Messina
- - ------------------------ ------------------------
Joseph W. Rennhack Philip S. Messina
Secretary President and Chief Executive
Officer
[SEAL]
WITNESS:
__________________________ /s/ Andrew L. Kaplan
____________________________
Andrew L. Kaplan
STATE OF NEW YORK )
: ss.:
COUNTY OF QUEENS )
On this _____ day of _______________, 1997, before me personally
came Philip S. Messina, to me known, who, being by me duly sworn,
did depose and say that he resides at No. 8 Bryan Path, Fort
Salonga, New York 11768, that he is President and Chief Executive
Officer of Columbia Federal Savings Bank, the savings bank
described in and which executed the foregoing instrument; that he
knows the seal of said savings bank; that the seal affixed to said
instrument is such savings bank's seal; that it was so affixed by
order of the Board of Directors of said savings bank; and that he
signed his name thereto by like order.
__________________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF QUEENS )
On this _____ day of _______________, 1997, before me personally
came Philip S. Messina, to me known, who, being by me duly sworn,
did depose and say that he resides at No. 8 Bryan Path, Fort
Salonga, New York 11768, that he is President and Chief Executive
Officer of Haven Bancorp, Inc., the savings bank holding company
described in and which executed the foregoing instrument; that he
knows the seal of said company; that the seal affixed to said
instrument is such company's seal; that it was so affixed by order
of the Board of Directors of said company; and that he signed his
name thereto by like order.
__________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF QUEENS )
On this _____ day of ________________, 1997, before me personally
came Andrew L. Kaplan, to me known, and known to me to be the
individual described in the foregoing instrument, who, being by me
duly sworn, did depose and say that he resides at 4 North Gate
Drive, Greenlawn, New York 11740, and that he signed his name to
the foregoing instrument.
_____________________
Notary Public