RETENTION AGREEMENT
This Retention Agreement (the "Agreement") is made and entered into on
May 13, 2007 (but effective at the time specified in Section 1 below) by and
between New York Community Bank (the "Bank") and John S. Fiore, an individual
(the "Employee").
INTRODUCTORY STATEMENT
New York Community Bancorp, Inc. ("NYB"), the parent holding company of
the Bank and Synergy Financial Group, Inc., the parent holding company of
Synergy Bank ("Synergy") have entered into an Agreement and Plan of Merger dated
as of May 13, 2007 (the "Merger Agreement"). Employee is a senior officer of
Synergy. NYB considers the Employee's continued services important to the
successful integration of the operation of Synergy's business with the Bank's
business and wishes to secure the Employee's continued services during a
transition period following the Effective Time by providing the Employee with a
financial incentive to remain in the Bank's employ. The Employee, understanding
the circumstances, has agreed to execute this Agreement and observe its terms.
1. Term of Agreement.
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This Agreement shall become effective and begin immediately following
the Effective Time (as such term is defined in the Merger Agreement) and shall
continue for twelve (12) months thereafter (the "Term").
2. Place of Employment and Extent of Services.
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(a) During the Term, the Employee's principal place of employment and
office shall be at the same location as immediately before the Effective Time.
(b) During the Term, the Employee shall serve as an employee of the
Bank, performing such duties and having such position, title and authority as
may be assigned to him by the President of the Bank. The Employee shall devote
his full business time and attention (other than during weekends, holidays,
approved vacation periods and periods of illness or approved leave of absence)
to the business and affairs of the Bank and shall use his best efforts to
advance its best interests.
3. Compensation and Benefits.
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In consideration for the services to be rendered by the Employee during
the Term pursuant to this Agreement, the Bank shall pay the Employee total
retention compensation of $390,000 ("Retention Compensation"), payable in
substantially equal installments over the Term in accordance with the Bank's
customary payroll practices. The Employee shall be an employee of the Bank and
shall also be eligible 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), vision care, dental, accident and long-term disability
insurance plans, and any other employee benefit plan 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 consistent with the
Bank's customary practices. During the period of his employment with the Bank,
the Bank will continue to provide the Employee with business use of the
automobile previously provided by Synergy or its subsidiary bank prior to the
Effective Time on the same basis as before the Effective Time (including payment
of annual insurance premiums, regular maintenance and repairs, registration and
titling fees and all charges for fuel in connection with the Employee's business
use of the vehicle).
4. Termination of Employment During the Term.
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The Employee's employment with the Bank may be terminated during the
Term at any time and for any reason and, in such event:
(a) If such termination results from the Employee's voluntary
resignation or discharge for cause (as hereinafter defined), the Bank shall pay
to the Employee (or, in the event of his death, to his estate) his earned but
unpaid compensation (including, without limitation, salary and all other items
which constitute wages under applicable law) as of the date of his termination
of employment. This payment shall 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 the date of the Employee's termination of employment.
(b) If such termination results from the Employee's discharge by the
Bank other than for "cause" (as hereinafter defined), death, disability as a
result of which the Employee qualifies for disability insurance benefits under
the Bank's group long-term disability insurance plan or under the federal Social
Security Act, the Bank shall pay the Employee the amount, if any, of the
remaining amount of Retention Compensation the Employee would have received over
the Term but for the early termination of the Agreement. The Bank shall pay such
amount, if any, in a single lump sum as soon as practicable following
termination of employment.
The Bank shall have the right to discharge the Employee for "cause" if
it determines that the Employee has committed gross negligence in the
performance of, or continually neglects, after due notice, to perform his
assigned duties which are reasonable in light of the employee's position and
experience; has been convicted or entered a plea of guilty or nolo contendere
to, the commission of a felony or any other crime involving dishonesty, personal
profit or other circumstance likely, in the reasonable judgment of the Bank, to
have a material adverse effect on the Bank or its business, operations or
reputation; or has violated, in any material respect, any law, rule, regulation,
written agreement or final cease-and-desist order applicable to the Bank in his
performance of services for the Bank.
5. Termination After the Term.
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Unless otherwise agreed by the parties, the expiration of the Term
shall result in a termination of the Employee's employment with the Bank. Upon
the termination of the Employee's employment, other than for cause (as defined
above), for a period of thirty-six months following the Employee's termination
date, the Employee and Employee's dependent family shall continue to be eligible
to participate in the medical, vision care and dental insurance plans sponsored
by the Bank or any successor thereto with the total cost of such premiums paid
by the Bank. The provisions of this Section shall survive the expiration of the
Term or the termination of this Agreement. Upon termination of employment of the
Employee for any reason, the Bank will transfer title of ownership to Employee's
bank-provided automobile and the Employee will pay any applicable taxes due with
respect to such transfer.
6. Successors and Assigns.
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This Agreement will inure to the benefit of and be binding upon the
Employee, his legal representatives and testate or intestate distributes, and
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 substantially all of the assets and business of the Bank may be
sold or otherwise transferred.
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7. Notices.
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Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five (5) days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
if to the Employee, at the address on file in the Bank's personnel
records for the Employer:
if to the Bank:
New York Community Bank
615 Merrick Avenue
Westbury, New York 11590
Attention: Joseph R. Ficalora, President and Chief Executive
Officer
8. Severability.
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A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity or enforceability of any other
provision hereof.
9. Waiver.
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Failure to insist upon strict compliance with any of the terms or
conditions hereof shall not be deemed a waiver of such term 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.
10. Counterparts.
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This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same agreement.
11. Governing Law.
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This Agreement shall be governed by and construed and enforced 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, except
to the extent that such laws are pre-empted by the federal laws of the United
States.
12. Entire Agreement; Modifications.
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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 representations relating to the subject matter
hereof. No modifications of this agreement shall be valid unless made in writing
and signed by the parties hereto.
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13. Dispute Resolution.
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Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in New York, New York in
accordance with the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association then in effect. Judgment may be entered on
the arbitrator's award in any court having jurisdiction.
14. Effect of Failure to Complete the Merger.
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The parties' obligations to each other under this Agreement are
conditioned on the consummation of the transactions contemplated by the Merger
Agreement. If the Merger Agreement is terminated, the parties shall have no
obligation to each other under this Agreement.
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The Bank has caused this Retention Agreement to be executed and the
Employee has hereunto set his hand, all as of the day and year first above
written.
NEW YORK COMMUNITY BANK
By: /s/Thomas R. Cangemi
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Name: THOMAS R. CANGEMI
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Title:Senior Executive Vice President and Chief
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Financial Officer
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/s/John S. Fiore
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JOHN S. FIORE, Employee