Exhibit 10.2
FORM OF
EMPLOYMENT AGREEMENT
FOR
ATLANTIC LIBERTY FINANCIAL CORP.
This Agreement is made effective as of the ____ day of _____________, 2002
by and between Atlantic Liberty Financial Corp., a Delaware corporation (the
"Company"), with its principal administrative office at 186 Montague Street,
Brooklyn, New York 11201-3001, and Barry M. Donohue (the "Executive").
WHEREAS, the Executive is currently employed as the President and Chief
Executive Officer of the Association; and
WHEREAS, the Association is in the process of converting from the mutual to
the stock form of organization and will concurrently become a wholly-owned
subsidiary of Atlantic Liberty Savings, F.A., a federally chartered stock
savings association (the "Association") (the "Conversion"); and
WHEREAS, concurrently herewith, the Association intends to enter into an
employment agreement with the Executive (the "Association Employment Agreement")
on substantially similar terms as set forth herein; and
WHEREAS, the Executive is also currently employed as the President and
Chief Executive Officer of the Company; and
WHEREAS, the Company desires to assure itself of the continued availability
of the Executive's services as provided in this Agreement; and
WHEREAS, the Executive is willing to serve the Company 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 Company and the Executive hereby agree
as follows:
1. POSITION AND RESPONSIBILITIES
During the period of his employment hereunder, Executive agrees to serve as
President and Chief Executive Officer of the Company. During said period,
Executive also agrees to serve, if elected, as an officer and director of any
subsidiary or affiliate of the Company. Failure to reelect Executive as
President and Chief Executive Officer without the consent of the Executive
during the term of this Agreement shall constitute a breach of this Agreement.
2. TERMS AND DUTIES
(a) The period of Executive's employment under this Agreement shall begin
as of the date first above written and shall continue for thirty-six (36) full
calendar months thereafter. Commencing on the first anniversary date of this
Agreement (the "Anniversary Date"), and continuing on each Anniversary Date
thereafter, this Agreement shall renew for an additional
year such that the remaining term shall be three (3) years unless written notice
of non-renewal ("Non-Renewal Notice") is provided to Executive at least ten (10)
days and not more than thirty (30) days prior to any such Anniversary Date, that
his employment shall cease at the end of thirty-six (36) months following such
Anniversary Date. Prior to each notice period for non-renewal, the disinterested
members of the Board of Directors of the Company ("Board") will conduct a
comprehensive performance evaluation and review of the Executive for purposes of
determining whether to extend the Agreement, and the results thereof shall be
included in the minutes of the Board's meeting.
(b) During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall faithfully perform his duties hereunder
including activities and services related to the organization, operation and
management of the Company.
3. COMPENSATION AND REIMBURSEMENT
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Section 2(b). In
consideration of the services to be rendered by Executive hereunder, the Company
and/or its subsidiaries shall pay Executive as compensation a salary of not less
than $___________ per year ("Base Salary"). Such Base Salary shall be payable
bi-weekly. During the period of this Agreement, Executive's Base Salary shall be
reviewed at least annually; the first such review will be made no later than
January 31 of each year during the term of this Agreement and shall be effective
from the first day of said month through the end of the calendar year. Such
review shall be conducted by a Committee designated by the Board of Directors of
the Company and the Board of Directors of the Association (collectively the
"Boards"), and the Boards may increase, but not decrease, Executive's Base
Salary (any increase in Base Salary shall become the "Base Salary" for purposes
of this Agreement). In addition to the Base Salary provided in this Section
3(a), the Company and/or its subsidiaries shall provide Executive at no cost to
Executive with all such other benefits as are provided uniformly to permanent
full-time employees of the Company and/or its subsidiaries.
(b) The Company and/or its subsidiaries will provide Executive with
employee benefit plans, arrangements and perquisites substantially equivalent to
those in which Executive was participating or otherwise deriving benefit from
immediately prior to the beginning of the term of this Agreement, and the
Company and/or its subsidiaries will not, without Executive's prior written
consent, make any changes in such plans, arrangements or perquisites which would
adversely affect Executive's rights or benefits thereunder. Without limiting the
generality of the foregoing provisions of this Subsection (b), Executive will be
entitled to participate in or receive benefits under any employee benefit plans
including but not limited to, retirement plans, supplemental retirement plans,
pension plans, profit-sharing plans, health-and-accident plans, medical coverage
or any other employee benefit plan or arrangement made available by the Company
and/or its subsidiaries in the future to its senior executives and key
management employees, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and arrangements. Executive
will be entitled to incentive compensation and bonuses as provided in any plan
of the Company and/or its subsidiaries in which Executive is eligible to
participate (and he shall be entitled to a pro rata distribution under
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any incentive compensation or bonus plan as to any year in which a termination
of employment occurs, other than termination for Cause). Nothing paid to the
Executive under any such plan or arrangement will be deemed to be in lieu of
other compensation to which the Executive is entitled under this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of this
Section 3, the Company and/or its subsidiaries shall pay or reimburse Executive
for all reasonable travel and other reasonable expenses incurred by Executive
performing his obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board may from time to time
determine.
4. OUTSIDE ACTIVITIES
The Executive may serve as a member of the board of directors of business,
community and charitable organizations subject to the approval of the Board,
provided that in each case such service shall not materially interfere with the
performance of his duties under this Agreement or present any conflict of
interest. Such service to and participation in outside organizations shall be
presumed for these purposes to be for the benefit of the Company, and the
Company shall reimburse the Executive his reasonable expenses associated
therewith.
5. WORKING FACILITIES AND EXPENSES
The Executive's principal place of employment shall be the Company's
principal executive offices. The Company shall provide the Executive, at his
principal place of employment, with a private office, stenographic services and
other support services and facilities suitable to his position with the Company
and necessary or appropriate in connection with the performance of his duties
under this Agreement. The Company and/or its subsidiaries shall provide the
Executive with an automobile suitable to the position of President and Chief
Executive Officer of the Company, and such automobile may be used by the
Executive in carrying out his duties under this Agreement and for his personal
use such as commuting between his residence and his principal place of
employment. The Company shall reimburse the executive for the cost of
maintenance, use and servicing of such automobile. The Company shall reimburse
the Executive for his ordinary and necessary business expenses incurred in
connection with the performance of his duties under this Agreement, including,
without limitation, fees for memberships in such clubs and organizations that
the Executive and the Board mutually agree are necessary and appropriate to
further the business of the Company, and travel and reasonable entertainment
expenses. Reimbursement of such expenses shall be made upon presentation to the
Company of an itemized account of the expenses in such form as the Company may
reasonably require.
6. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
The provisions of this Section shall in all respects be subject to the
terms and conditions stated in Sections 9 and 17.
(a) The provisions of this Section shall apply upon the occurrence of an
Event of Termination (as herein defined) during the Executive's term of
employment under this
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Agreement. As used in this Agreement, an "Event of Termination" shall mean and
include any one or more of the following:
(i) the termination by the Company or the Association of Executive's
full-time employment hereunder for any reason other than (A) Disability or
Retirement, as defined in Section 7 below, or (B) Termination for Cause as
defined in Section 8 hereof; or
(ii) Executive's resignation from the Association's employ, upon any
(A) failure to elect or reelect or to appoint or reappoint Executive
as President and Chief Executive Officer,
(B) material change in Executive's function, duties, or
responsibilities, which change would cause Executive's position
to become one of lesser responsibility, importance, or scope from
the position and attributes thereof described in Section 1,
above,
(C) liquidation or dissolution of the Company or the Association
other than liquidations or dissolutions that are caused by
reorganizations that do not affect the status of Executive, or
(D) breach of this Agreement by the Company.
Upon the occurrence of any event described in clauses (ii) (A), (B), (C)or (D),
above, Executive shall have the right to elect to terminate his employment under
this Agreement by resignation upon sixty (60) days prior written notice given
within a reasonable period of time not to exceed four calendar months after the
initial event giving rise to said right to elect. Notwithstanding the preceding
sentence, in the event of a continuing breach of this Agreement by the Company,
the Executive, after giving due notice within the prescribed time frame of an
initial event specified above, shall not waive any of his rights solely under
this Agreement and this Section by virtue of the fact that Executive has
submitted his resignation but has remained in the employment of the Company and
is engaged in good faith discussions to resolve any occurrence of an event
described in clauses (A), (B), (C) or (D) above.
(iii) Executive's voluntary resignation from the Company's employ on the
effective date of, or at any time following, a Change in Control during the term
of this Agreement. For these purposes, a Change in Control of the Company or the
Association 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 current report on Form
8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act"); or (ii) results in a
Change in Control of the Association or the Company within the meaning of the
Home Owners' Loan Act, as amended, and applicable rules and regulations
promulgated thereunder (collectively, the "HOLA") as in effect at the time of
the Change in Control; or (iii) without limitation such a Change in Control
shall be deemed to have occurred at such time as (a) any "person" (as the term
is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 25% or more of the
combined voting power of Company's outstanding securities, except for any
securities purchased by the Association's
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employee stock ownership plan or trust; or (b) individuals who constitute the
Board on the date hereof (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof, provided that any person 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; or (c) a plan of reorganization, merger, consolidation, sale of
all or substantially all the assets of the Association or the Company or similar
transaction in which the Association or Company is not the surviving institution
occurs; or (d) a proxy statement soliciting proxies from stockholders of the
Company, by someone other than the current management of the Company, seeking
stockholder approval of a plan of reorganization, merger or consolidation of the
Company or similar transaction with one or more corporations as a result of
which the outstanding shares of the class of securities then subject to the plan
are to be exchanged for or converted into cash or property or securities not
issued by the Company; or (e) a tender offer is made for 25% or more of the
voting securities of the Company and the shareholders owning beneficially or of
record 25% or more of the outstanding securities of the Company have tendered or
offered to sell their shares pursuant to such tender offer and such tendered
shares have been accepted by the tender offeror.
(b) Upon the occurrence of an Event of Termination, on the Date of
Termination, as defined in Section 9(b), the Company and/or its subsidiaries
shall pay Executive, or, in the event of his subsequent death, his beneficiary
or beneficiaries, or his estate, as the case may be, as severance pay or
liquidated damages, or both, a sum equal to three (3) times the sum of (i) Base
Salary and (ii) the highest rate of bonus awarded to the Executive during the
prior three years. At the election of the Executive, which election is to be
made on an annual basis during the month of January, and which election is
irrevocable for the year in which made and upon the occurrence of an Event of
Termination, any payments shall be made in a lump sum, or paid bi-weekly during
the remaining term of this Agreement following the Executive's termination. In
the event that no election is made, payment to the Executive will be made on a
bi-weekly basis during the remaining term of this Agreement. Such payments shall
not be reduced in the event the Executive obtains other employment following
termination of employment.
(c) Upon the occurrence of an Event of Termination, the Association will
cause to be continued life, medical, dental and disability coverage
substantially identical to the coverage maintained by the Association for
Executive prior to his termination, or a payment in lieu thereof, of not less
than $12,000 per annum. Such coverage or payment shall continue for thirty-six
(36) months from the Date of Termination.
(d) Within sixty (60) days (or within such shorter period to the extent
that information can be reasonably be obtained) following his termination of
employment with the Company, a lump sum payment in an amount equal to the
excess, if any, of: (A) the present value of the benefits to which he would be
entitled under the Company and/or the Association's defined benefit pension plan
(and any other defined benefit plan maintained by the Company and/or the
Association) if he had the additional years of service that he would have had if
he had continued working for the Company for a thirty-six (36) month period
following his termination earning the salary that would have been paid during
the remaining unexpired term of this Agreement (assuming, if a Change in Control
as defined in Section 4(a)(iii) has occurred, that
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the annual Base Salary increases under Section 3(a) would apply and,
additionally, that such payment would continue for the remaining unexpired term
of this Agreement), determined as if each such plan had continued in effect
without change in accordance with its terms as of the day prior to his actual
date of his termination and as if such benefits were payable beginning on the
first day of the month coincident with or next following his actual date of his
termination, over (B) the present value of the benefits to which he is actually
entitled under the Company and/or the Association's defined benefit pension plan
( and any other defined benefit plan maintained by the Company and/or the
Association) as of the date of his termination, where such present values are to
be determined using a discount rate of 6% and the mortality tables prescribed
under Section 72 of the Internal Revenue Code of 1986 ("Code");
(e) Within sixty (60) days (or within such shorter period to the extent
that information can be reasonably be obtained) following his termination of
employment with the Company, a lump sum payment in an amount equal to the
present value of the Company and/or the Association's contributions that would
have been made on his behalf under the Company and/or the Association's 401(k)
Plan and employee stock ownership plan ("ESOP") (and any other defined
contribution plan maintained by the Company and/or the Association) if he had
continued working for the Company for a thirty-six (36) month period following
his termination earning the salary that would have been achieved during the
remaining unexpired term of this Agreement (assuming, if a Change in Control has
occurred, that the annual Base Salary increases under Section 3(a) would apply
and, additionally, that such payment would continue for the remaining unexpired
term of this Agreement) and making the maximum amount of employee contributions
permitted, if any, under such plan or plans, where such present values are to be
determined using a discount rate of 6%.
(f) If the Company gives Executive a Non-Renewal Notice, or if the Company
does not extend the Agreement at least sixty (60) days prior to the Anniversary
Date, as described in Section 2(a) of the Agreement, Executive may resign from
employment of the Company at any time after such event. In such case, the
Company shall pay to the Executive the severance benefits described in
subsections (b) through (e) of this Section 6.
7. TERMINATION UPON RETIREMENT, DISABILITY OR DEATH
For purposes of this Agreement, termination by the Company of the Executive
based on "Retirement" shall mean termination upon attainment of age 65, or such
later age as consented to by the Board. Upon termination of Executive upon
Retirement, Executive shall be entitled to all benefits under any retirement
plan of the Company and other plans to which Executive is a party.
In the event Executive is unable to perform his duties under this Agreement
on a full-time basis for a period of six (6) consecutive months by reason of
illness or other physical or mental disability, the Company may terminate this
Agreement, provided that the Company shall continue to be obligated to pay the
Executive his Base Salary for the remaining term of the Agreement, or one year,
whichever is the longer period of time, and provided further that any amounts
actually paid to Executive pursuant to any disability insurance or other similar
such program which the Company has provided or may provide on behalf of its
employees or pursuant to any workman's or social security disability program
shall reduce the compensation to be paid to the Executive pursuant to this
paragraph.
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In the event of Executive's death during the term of the Agreement, his
estate, legal representatives or named beneficiaries (as directed by Executive
in writing) shall be paid Executive's Base Salary as defined in Paragraph 3(a)
at the rate in effect at the time Executive's death for a period of one (1) year
from the date of the Executive's death, and the Company will continue to provide
medical, dental, family and other benefits normally provided for an Executive's
family for one (1) year after the Executive's death.
8. 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 minor
traffic violations or similar offenses) or final cease-and-desist order, or
material breach of any provision of this Agreement. In determining incompetence,
the acts or omissions shall be measured against standards generally prevailing
in the savings institutions industry. For purposes of this paragraph, no act or
failure to act on the part of Executive shall be considered "willful" unless
done, or omitted to be done, by the Executive not in good faith and without
reasonable belief that the Executive's action or omission was in the best
interest of the Association. 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 three-fourths of the members of the Board at a meeting of
the Board called and held for that purpose (after reasonable notice to Executive
and an opportunity for him, together with counsel, to be heard before the
Board), finding that in the good faith opinion of the Board, Executive was
guilty of conduct justifying Termination for Cause and specifying the
particulars thereof in detail. Executive shall not have the right to receive
compensation or other benefits for any period after Termination for Cause. Any
stock options granted to Executive under any stock option plan of the
Association, the Company or any subsidiary or affiliate thereof, shall become
null and void effective upon Executive's receipt of Notice of Termination for
Cause pursuant to Section 9 hereof, and shall not be exercisable by Executive at
any time subsequent to such Termination for Cause.
9. NOTICE
(a) Any purported termination by the Company or by Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
(b) "Date of Termination" shall mean (A) if Executive's employment is
terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that he shall not have returned to the performance of his duties
on a full-time basis during such thirty (30) day period), and (B) if his
employment is terminated for any other reason, the date specified in the Notice
of Termination (which, in the case of a Termination for Cause, shall not be less
than thirty (30) days from the date such Notice of Termination is given).
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(c) If, within thirty (30) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, except upon the voluntary termination
by the Executive in which case the Date of Termination shall be the date
specified in the Notice, the Date of Termination shall be the date on which the
dispute is finally determined, either by mutual written agreement of the
parties, by a binding arbitration award, or by a final judgment, order or decree
of a court of competent jurisdiction (the time for appeal having expired and no
appeal having been perfected) and provided further that the Date of Termination
shall be extended by a notice of dispute only if such notice is given in good
faith and the party giving such notice pursues the resolution of such dispute
with reasonable diligence. Notwithstanding the pendency of any such dispute, the
Association will continue to pay Executive his full compensation in effect when
the notice giving rise to the dispute was given (including, but not limited to,
Base Salary) and continue Executive as a participant in all compensation,
benefit and insurance plans in which he was participating when the notice of
dispute was given, until the dispute is finally resolved in accordance with this
Agreement, provided such dispute is resolved within the term of this Agreement.
If such dispute is not resolved within the term of the Agreement, the
Association shall not be obligated, upon final resolution of such dispute, to
pay Executive compensation and other payments accruing beyond the term of the
Agreement. Amounts paid under this Section shall be offset against or reduce any
other amounts due under this Agreement.
10. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with paragraph (b) of this Section during the
term of this Agreement and for one (1) full year after the expiration or
termination hereof.
(b) Executive shall, upon reasonable notice, furnish such information and
assistance to the Association as may reasonably be required by the Association
in connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party.
11. NON-COMPETITION
(a) Upon any termination of Executive's employment hereunder, other than a
termination, (whether voluntary or involuntary) in connection with a Change in
Control, as a result of which the Company is paying Executive benefits under
Section 6 of this Agreement, Executive agrees not to compete with the
Association and/or the Company for a period of one (1) year following such
termination within twenty-five (25) miles of any existing branch of the
Association or any subsidiary of the Company or within twenty-five (25) miles of
any office for which the Association, the Company or a Association subsidiary of
the Company has filed an application for regulatory approval to establish an
office, determined as of the effective date of such termination, except as
agreed to pursuant to a resolution duly adopted by the Board. Executive agrees
that during such period and within said area, cities, towns and counties,
Executive shall not work for or advise, consult or otherwise serve with,
directly or indirectly, any entity whose business materially competes with the
depository, lending or other business activities of the Association and/or the
Company. The parties hereto, recognizing that irreparable injury will result to
the Association and/or the Company, its business and property in the event of
Executive's breach of this Subsection 11(a) agree that in the event of any such
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breach by Executive, the Association and/or the Company will be entitled,
in addition to any other remedies and damages available, to an injunction to
restrain the violation hereof by Executive, Executive's partners, agents,
servants, employers, employees and all persons acting for or with Executive.
Executive represents and admits that Executive's experience and capabilities are
such that Executive can obtain employment in a business engaged in other lines
and/or of a different nature than the Association and/or the Company, and that
the enforcement of a remedy by way of injunction will not prevent Executive from
earning a livelihood. Nothing herein will be construed as prohibiting the
Association and/or the Company from pursuing any other remedies available to the
Association and/or the Company for such breach or threatened breach, including
the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Company and
affiliates thereof, as it may exist from time to time, is a valuable, special
and unique asset of the business of the Company. Executive will not, during or
after the term of his employment, disclose any knowledge of the past, present,
planned or considered business activities of the Company or affiliates thereof
to any person, firm, corporation, or other entity for any reason or purpose
whatsoever (except for such disclosure as may be required to be provided to any
federal banking agency with jurisdiction over the Company or Executive).
Notwithstanding the foregoing, Executive may disclose any knowledge of banking,
financial and/or economic principles, concepts or ideas which are not solely and
exclusively derived from the business plans and activities of the Company, and
Executive may disclose any information regarding the Association or the Company
which is otherwise publicly available. In the event of a breach or threatened
breach by the Executive of the provisions of this Section, the Company will be
entitled to an injunction restraining Executive from disclosing, in whole or in
part, the knowledge of the past, present, planned or considered business
activities of the Company or affiliates thereof, or from rendering any services
to any person, firm, corporation, other entity to whom such knowledge, in whole
or in part, has been disclosed or is threatened to be disclosed. Nothing herein
will be construed as prohibiting the Company from pursuing any other remedies
available to the Company for such breach or threatened breach, including the
recovery of damages from Executive.
12. SOURCE OF PAYMENTS; NO DUPLICATION OF PAYMENTS
(a) All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Company.
(b) Notwithstanding any provision herein to the contrary, to the extent
that payments and benefits, as provided by this Agreement, are paid to or
received by the Executive under the Association Employment Agreement, such
compensation payments and benefits paid by the Association will be subtracted
from any amount due simultaneously to the Executive under similar provisions of
this Agreement. Payments pursuant to this Agreement and the Association
Employment Agreement shall be allocated in proportion to the level of activity
and the time expended on such activities by the Executive as determined by the
Company and the Association on a quarterly basis.
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13. NO EFFECT EMPLOYEE BENEFITS PLANS OR PROGRAMS
The termination of the Executive's employment during the term of this
Agreement or thereafter, whether by the Company or by the Executive, shall have
no effect on the vested rights of the executive under the Company's or the
Association'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 other employee benefit plans or programs, or
compensation plans or programs in which the Executive was a participant.
14. REQUIRED REGULATORY PROVISIONS
Notwithstanding anything herein contained to the contrary, any payments to
the Executive by the Company, whether pursuant to this Agreement or otherwise,
are subject to and conditioned upon their compliance with Section 18(k) of the
Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and the regulations
promulgated thereunder in 12 C.F.R. Part 359.
15. 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,
Executive and the Association and their respective successors and assigns.
16. ENTIRE AGREEMENT; MODIFICATION AND WAIVER
(a) This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supercedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof, except that the parties acknowledge that this Agreement shall not impact
any of the rights and obligations of the parties to the Association Employment
Agreement or any of the agreements or plans referenced in the Association
Employment Agreement except as set forth in Section 12(b) hereof. No
modifications of this Agreement shall be valid unless made in writing and signed
by the parties hereto.
(b) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(c) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
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17. 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.
18. 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.
19. GOVERNING LAW
This Agreement shall be governed by the laws of the State of New York but
only to the extent not superseded by federal law.
20. 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, one of whom shall be selected by the Company, one of whom
shall be selected by the Executive and the third of whom shall be selected by
the other two arbitrators. The panel shall sit in a location within fifty (50)
miles from the location of the Company, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrators 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.
21. PAYMENT OF LEGAL FEES
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Company, provided that the dispute or interpretation
has
been settled by Executive and the Company or resolved in the Executive's favor.
22. INDEMNIFICATION
During the term of this Agreement and for a period of six (6) years
thereafter, the Company shall provide Executive (including his heirs, executors
and administrators) with coverage under a standard directors and officers
liability insurance policy at its expense, and shall indemnify Executive (and
his heirs, executors and administrators) to the fullest extent permitted under
federal law against all expenses and liabilities reasonably incurred by him in
connection with or arising out of any action, suit or proceeding in which he may
be involved by reason of his having been a director or officer of the Company
(whether or not he continues to be a director or officer at the time of
incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgments, court costs and attorneys fees and
the cost
11
of reasonable settlements (such settlements must be approved by the Board of
Directors of the Company). If such action, suit or proceeding is brought against
Executive in his capacity as an officer or director of the Company, however,
such indemnification shall not extend to matters as to which Executive is
finally adjudged to be liable for willful misconduct in the performance of his
duties.
23. SUCCESSOR TO THE COMPANY
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 Association or the Company,
expressly and unconditionally to assume and agree to perform the Company's
obligations under this Agreement, in the same manner and to the same extent that
the Company would be required to perform if no such succession or assignment had
taken place.
[Remainder of Page Intentionally Blank]
SIGNATURES
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer and Executive has signed this Agreement, on the day
and date first above written.
ATTEST: ATLANTIC LIBERTY FINANCIAL CORP.
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WITNESS: EXECUTIVE:
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Barry M. Donohue
President and Chief Executive Officer