EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated as of March 1,
1997, is made by and between Long Island Bancorp, Inc., a Delaware corporation,
having its principal offices at 201 Old Country Road, Melville, New York 11747
(the "Corporation"), and Mr. Lawrence W. Peters, residing at 143 Cabot Road,
Massapequa, New York 11758 (the "Executive").
RECITALS
1. The Corporation desires to employ the Executive as President and
Chief Operating Officer of the Corporation, and to enter into an employment
agreement embodying the terms of such relationship.
2. The Executive is willing to be employed as President and Chief
Operating Officer of the Corporation on the terms set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, and for other good and valuable consideration, the
Corporation and the Executive hereby agree as follows.
1. DEFINITIONS.
1.1 "AFFILIATE" means any person or entity of any kind effectively
controlling, effectively controlled by or effectively under common control with
the Corporation, including, without limitation, The Long Island Savings Bank,
FSB (the "Bank").
1.2 "BOARD" means the board of directors of the Corporation.
1.3 "CAUSE" means termination due to the Executive's (a) personal
dishonesty, (b) incompetence, (c) willful misconduct, (d) breach of fiduciary
duty involving personal profit, (e) intentional failure to perform stated
duties, (f) willful violation of any law, rule or regulation (other than traffic
violations or similar offenses), or final cease-and-desist order, or (g)
material breach of any provision of this Agreement.
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1.4 "CHANGE IN CONTROL" means, after the date of the Agreement, (a)
a change in control of the Corporation and/or the Bank of a nature that would be
required to be reported in response to Item 1 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, as amended (the "Exchange Act"); (b) a change
in control of the Bank within the meaning of 12 U.S.C. ss. 1817(i), the Change
in Bank Control Act, and 12 C.F.R. ss. 574.4 of the Acquisition of Control of
Savings Association regulations of the Office of Thrift Supervision; (c)
individuals who constitute the Board as of the date of this Agreement (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 of
this Agreement whose election was approved by a vote of at least three-quarters
of the directors then comprising the Incumbent Board, or whose nomination for
election by the Corporation's shareholders was approved by the Corporation's
nominating committee then serving under the Board, shall be, for purposes of
this clause (c), considered as though he or she was a member of the Incumbent
Board (but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of either an actual or threatened
election contest (as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies or consents); (d) approval by the shareholders of the Bank and/or the
Corporation, as the case may be, of a reorganization, merger or consolidation,
or the consummation of any such reorganization, merger or consolidation, other
than a reorganization, merger or consolidation with respect to which all or
substantially all of the individuals and entities who were the beneficial
owners, immediately prior to such reorganization, merger or consolidation, of
the Voting Interest in the Bank and/or the Corporation, as the case may be,
beneficially own, directly or indirectly, immediately after such reorganization,
merger or consolidation more than 80% of the Voting Interest of the corporation
or other entity resulting from such reorganization, merger or consolidation in
substantially the same proportions as their respective ownership, immediately
prior to such reorganization, merger or consolidation, of the Voting Interest in
the Bank and/or the Corporation, as the case may be; (e) approval by the
shareholders of the Bank and/or the Corporation, as the case may be, of (i) a
complete liquidation or dissolution of the Bank and/or the Corporation, or (ii)
the sale or other disposition of all or substantially all of the assets of the
Bank and/or the Corporation or the occurrence of any such liquidation,
dissolution, sale or other disposition, other than, in any case, to a
Subsidiary, directly or indirectly, of the Corporation or any Affiliate; and/or
(f) the solicitation of proxies from shareholders of the Corporation by someone
other than the current management of the Corporation and without the approval of
the
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Board, seeking shareholder approval of a plan of reorganization, merger or
consolidation of the Bank and/or the Corporation with one or more corporations
as a result of which the shareholders' interests in the Bank and/or the
Corporation, as the case may be, are actually exchanged for or converted into
securities not issued by the Bank or the Corporation, as the case may be. No
failure on the part of the Executive to exercise any rights upon the occurrence
of a Change in Control shall be deemed a waiver of or otherwise impair the
rights of the Executive in respect of any subsequent events or circumstances
constituting a Change in Control
1.5 "CODE" means the Internal Revenue Code of 1986, as amended, and
as in effect from time to time, and/or any successor code thereto.
1.6 "DATE OF TERMINATION" means the date specified in the Notice of
Termination (as defined in Section 6.8 of this Agreement); PROVIDED, HOWEVER,
that if, within thirty (30) days after any Notice of Termination is given, the
party receiving such Notice of Termination notifies the other party in writing
that a dispute exists concerning the termination, 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, including all
appeals, unless the time for appeal therefrom has expired and no appeal has been
perfected; PROVIDED, FURTHER, HOWEVER, that the Date of Termination shall (a) in
no case be later than the date on which the Term of Employment expires, and (b)
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.
1.7 "GOOD REASON" means, and shall be deemed to exist if, without
the written consent of the Executive, (a) there occurs any reduction of Base
Salary, minimum bonus as per section 5.2, or material reduction in other
benefits or any material change by the Corporation to the Executive's function,
duties, or responsibilities in effect on the date hereof and/or as set forth in
Section 4.1 of this Agreement, which change would cause the Executive's position
with the Corporation to become one of lesser responsibility, importance, or
scope from the position and attributes thereof in effect on the date hereof
and/or as set forth in Section 4.1 of this Agreement (and any such material
change shall be deemed a continuing breach of this Agreement), (b) there occurs
any material breach of this Agreement by the Corporation, (c) a Change in
Control occurs, or (d) the Corporation, if and after a Suspension for Disability
(as defined in Section 6.2(a)) occurs and after a Change in Control occurs,
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fills the Executive's position (in the manner set forth in Section 6.2(b) of
this Agreement).
1.8 "PARENT" means any corporation which has a direct or indirect
legal or beneficial ownership interest in the Corporation, but only if any such
corporation owns or controls, directly or indirectly, securities possessing at
least 50% of the total combined voting power of all classes of securities of the
Corporation.
1.9 "SUBSIDIARY" means any corporation (other than the Corporation)
in which the Corporation or any Parent has a direct or indirect legal or
beneficial ownership interest, but only if the Corporation or the Parent, as the
case may be, owns or controls, directly or indirectly, securities possessing at
least 50% of the total combined voting power of all classes of securities in any
such corporation.
1.10 "VOTING INTEREST" means securities of any class or classes or
other ownership interests having general voting power under ordinary
circumstances to elect members of a board of directors or trustees of any
entity.
2. EMPLOYMENT.
2.1 GENERAL. Subject to the terms and provisions set forth in this
Agreement, the Corporation, during the Term of Employment, agrees to continue to
employ the Executive as President and Chief Operating Officer of the Corporation
and the Executive hereby accepts such continued employment.
2.2 OTS SUSPENSION. 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 (g)(1) of the Federal Deposit
Insurance Act (12 U.S.C. ss.ss. 1818(e)(3) and (g)(1)), the Corporation's
obligations under this Agreement shall be suspended as of the date of service,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Corporation may in its discretion (i) pay the Executive all or
part of the compensation withheld while its contract obligations were suspended,
and (ii) reinstate (in whole or in part) any of its obligations which were
suspended.
3. TERM OF EMPLOYMENT.
3.1 TERM. The term of employment under this Agreement shall commence
as of March 1, 1997 (the "Commencement Date") and, unless extended as provided
below or earlier terminated by the Corporation or the Executive under Section 6
of this Agreement,
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shall continue December 31, 1998 (the "Term of Employment").
The Term of Employment may be extended upon written agreement of both parties.
3.2 OTS REMOVAL. Notwithstanding anything to the contrary in this
Agreement, 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 (g)(1) of the Federal Deposit Insurance Act (12 U.S.C. ss.ss.
1818(e)(4) or (g)(1)), all obligations of the Corporation under this Agreement
shall terminate as of the effective date of the order, but vested rights of the
Corporation and/or the Executive, if any, shall not be affected.
4. POSITIONS, RESPONSIBILITIES AND DUTIES.
4.1 POSITIONS AND DUTIES. During the Term of Employment, the
Executive shall be employed and shall serve as President and Chief Operating
Officer of the Corporation. In such position(s), the Executive shall have the
duties, responsibilities and authority as determined and designated from time to
time by the Board. The Executive shall serve under the direction and supervision
of the Corporation's chief executive officer and shall report only to such chief
executive officer. Notwithstanding the above, the Executive shall not be
required to perform any duties and responsibilities (a) which would result in a
non-compliance with or violation of any applicable law, regulation, regulatory
bulletin, and/or any other regulatory requirement or (b) on a regular basis in
any locations outside the counties of Nassau, Suffolk or the City of New York
unless agreed upon by the Executive.
4.2 ATTENTION TO DUTIES AND RESPONSIBILITIES. During the Term of
Employment, the Executive shall, except for periods of absence occasioned by
illness, vacation in accordance with Section 5.6, and reasonable leaves of
absence in accordance with the practices of the Corporation and the Bank as of
the date of this Agreement, devote substantially all of his business time to the
business and affairs of the Corporation and the Bank and the Executive shall use
his best efforts, business skills, ability and fidelity to perform faithfully
and efficiently the duties and responsibilities contemplated by this Agreement;
PROVIDED, HOWEVER, that the Executive shall be allowed, to the extent such
activities do not present a conflict or substantially interfere with the
performance by the Executive of his duties and responsibilities hereunder, (a)
to manage the Executive's personal affairs, and (b)(i) to serve on boards or
committees of civic or charitable organizations or trade associations, and (ii)
after obtaining the consent of the Board, as evidenced by a written resolution
of the Board and under the terms and conditions specified in any such
resolution, to serve on the
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boards of directors or trustees of companies or other organizations and
associations; PROVIDED, FURTHER, HOWEVER, that all offices or positions which
the Executive currently holds or has held prior to the date of this Agreement
and those set forth on Exhibit "A", annexed hereto are designated as currently
consented to positions.
5. COMPENSATION AND OTHER BENEFITS.
5.1 BASE SALARY. During the Term of Employment, the Executive shall
receive a base salary of $375,000 per annum ("Base Salary") payable in
accordance with the Corporation's normal payroll practices.
5.2 ANNUAL BONUS. During the Term of Employment, the Executive shall
be entitled to an annual bonus payment in an amount not less than $125,000, such
payment to be made no later than January 31st of the year following the year in
which such payment is earned; PROVIDED, HOWEVER, that the annual bonus paid to
the Executive following a Change in Control shall not be less than the highest
annual bonus paid during the Term of Employment. No other compensation or
additional benefits provided for in this Agreement shall be deemed a substitute
for the Executive's right, to receive such bonuses.
5.3 INCENTIVE, RETIREMENT, AND SAVINGS PLANS. During the Term of
Employment, the Executive shall participate in all incentive, pension,
retirement, savings and other employee benefit plans and programs, if any,
maintained from time to time by the Corporation and/or the Bank for the benefit
of senior executives and/or other employees of the Corporation and/or the Bank.
5.4 WELFARE BENEFIT PLANS. During the Term of Employment, the
Executive, the Executive's spouse, if any, and their eligible dependents, if
any, shall participate in and be covered by all the welfare benefit plans and
programs, if any, maintained by the Corporation and/or the Bank for the benefit
of senior executives and/or other employees of the Corporation and/or the Bank.
5.5 EXPENSE REIMBURSEMENT. During the Term of Employment, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses, including reasonable business travel expenses, incurred by the
Executive in performing his duties and responsibilities hereunder in accordance
with the policies and procedures of the Corporation as in effect at the time the
expense was incurred, as the same may be changed from time to time.
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5.6 VACATION AND FRINGE BENEFITS. During the Term of Employment, the
Executive shall be entitled to five weeks paid vacation each calendar year at
such times which do not materially interfere with the performance of the
Executive's duties hereunder. In addition, during the Term of Employment, the
Executive shall be eligible to benefit from such fringe benefits and
perquisites, if any, including automobile usage, in accordance with the policies
of the Corporation and as in effect and provided from time to time to senior
executives of the Corporation and/or the Bank
6. TERMINATION.
6.1 TERMINATION DUE TO DEATH. In the event of the Executive's death
during the Term of Employment, the Term of Employment shall thereupon end and
his estate or other legal representative, as the case may be, shall, subject to
Sections 2.2, 3.2, 6.10, and 6.11 of this Agreement, only be entitled to:
(a)(i)(A) Base Salary continuation at two-thirds (2/3) of the rate
in effect (as provided in Section 5.1 of this Agreement) on the Date of
Termination for a three-month period commencing on such Date of
Termination, or (B), if the Board so determines in its sole discretion and
in lieu of such three-month salary continuation described above in (A), a
lump sum payment equal in amount to the present value of such Base Salary
continuation (reasonably determined using a discount rate equal to the
most recent quote available for the three-month United States Treasury
Bill rate on the Date of Termination) payable within thirty business days
after the Date of Termination, and (ii) a pro-rata annual bonus for the
fiscal year in which such termination occurs, such pro-rata bonus amount
to be (I) pro-rated based on the number of calendar days transpired during
the fiscal year of the Corporation (prior to the Date of Termination) in
which such termination occurs over 365, (II) subject to Section 5.2,
determined in good faith by the Board (but in its sole discretion), and
(III) if any such bonus is payable, paid on or about the same date that
the annual bonus amounts payable in respect of such fiscal year, if any,
to the senior executives of the Corporation and/or the Bank are actually
paid to them;
(b) any Base Salary accrued to the Date of Termination or any bonus
actually awarded, but not yet paid as of the Date of Termination;
(c) reimbursement for all expenses (under Section 5.5) incurred as
of the Date of Termination, but not yet paid as of the Date of
Termination;
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(d) payment of the per diem value of any unused vacation days
accruing during the Term of Employment and the unused, unaccrued portion
of any vacation days available through the end (but not beyond) of the
calendar year of the Corporation in which such termination occurs;
(e) any other compensation and benefits as may be provided in
accordance with the terms and provisions of any applicable plans and
programs, if any, of the Corporation or any Subsidiary; and
(f) any rights to indemnification in accordance with Section 11 of
this Agreement.
6.2 SUSPENSION FOR DISABILITY.
(a) If, during the Term of Employment, the Executive shall have been
absent from his duties hereunder on a full-time basis due to physical or mental
illness for six (6) consecutive months, the Corporation may give thirty (30)
days written notice of potential suspension. If the Executive shall not have
returned to the full-time performance of his duties within such 30-day period,
the Corporation may suspend the Executive's employment for "Disability" (a
"Suspension for Disability").
(b) If a Suspension for Disability occurs during the Term of
Employment, the Corporation will pay the Executive a bi-weekly payment equal to
two-thirds (2/3) of the Executive's bi-weekly rate of Base Salary on the
effective date of the Suspension for Disability. These payments shall commence
on the effective date of the Executive's Suspension for Disability and will end
on the earlier of (i) the date the Executive returns to full-time employment
hereunder; (ii) the Executive's equivalent full-time employment by another
employer; (iii) the Executive's death; or (iv) the expiration or earlier end of
the Term of Employment (the "Term of Suspension"). After a Suspension for
Disability occurs, the Corporation shall be free to fill the Executive's
position(s), but such action by the Corporation, shall constitute Good Reason if
it occurs after a Change in Control. Upon the Executive being able to return to
full-time employment hereunder before the expiration of the Term of Employment,
the Executive shall be offered an equivalent available position and otherwise be
subject to the provisions of this Agreement. The disability payments hereunder
will be in addition to any benefit payable from any qualified or nonqualified
retirement plans or programs maintained by the Corporation and/or the Bank but
will be reduced by payments received by the Executive on account of such
disability under any long-term disability plan maintained for the Corporation's
and/or the Bank's employees.
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(c) During the Term of Suspension, the Corporation will cause to be
continued life and health coverage and such other benefits substantially
identical to the coverage and benefits maintained by the Corporation and/or the
Bank for the Executive prior to the occurrence of any Suspension for Disability.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation (except as otherwise provided in Section 6.2(b) above), accrued
benefits or pension granted or accruing to the Executive during the Term of
Suspension. Nothing in this Section 6.2 shall abrogate or limit other provisions
of this Agreement granting rights to the Executive or the Executive's spouse or
the Executive's estate following death, retirement or termination, if
applicable.
6.3 TERMINATION BY THE BOARD FOR CAUSE. The Board may terminate the
Executive's employment hereunder for Cause, as provided below. If the Board
terminates the Executive's employment hereunder for Cause, the Term of
Employment (if not already expired) shall thereupon end as set forth below and
the Executive shall, subject to Sections 2.2, 3.2, 6.10, and 6.11 of this
Agreement, only be entitled to:
(a) Base Salary up to and including the Date of Termination;
(b) any bonus actually awarded, but not yet paid as of the Date of
Termination;
(c) reimbursement for all expenses (under Section 5.5) incurred as
of the Date of Termination, but not yet paid as of the Date of
Termination;
(d) payment of the per diem value of any unused vacation days
accruing during the Term of Employment and, to the extent not prohibited
by applicable law, regulation, regulatory bulletin, and/or any other
regulatory requirement, as the same exists or may hereafter be promulgated
or amended, the unused, unaccrued portion of any vacation days available
through the end (but not beyond) of the calendar year of the Corporation
in which such termination occurs;
(e) to the extent not prohibited by applicable law, regulation,
regulatory bulletin, and/or any other regulatory requirement, as the same
exists or may hereafter be promulgated or amended, any other compensation
and benefits as may be provided in accordance with the terms and
provisions of any applicable plans and programs, if any, of the
Corporation or any Subsidiary; and
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(f) any rights to indemnification in accordance with Section 11 of
this Agreement.
In each case, in determining Cause the alleged acts or omissions of the
Executive shall be measured against standards generally prevailing in the
savings institution industry and the ultimate existence of Cause must be
confirmed by not less than 51% of the Incumbent Board (as constituted in
accordance with Section 1.4(c) of this Agreement) at a meeting called for such
purpose prior to any termination therefor; PROVIDED, HOWEVER, that it shall be
the Corporation's burden to prove the alleged facts and omissions and the
prevailing nature of the standards the Corporation shall have alleged are
violated by such acts and/or omissions of the Executive. In the event of such a
confirmation by 51% or more of the Incumbent Board, the Corporation shall notify
the Executive that the Corporation intends to terminate the Executive's
employment for Cause under this Section 6.3 (the "Confirmation Notice"). The
Confirmation Notice shall specify the act, or acts, upon the basis of which the
Incumbent Board has confirmed the existence of Cause and the Confirmation Notice
must be delivered to the Executive within fourteen (14) days after the Incumbent
Board so confirms the existence of Cause. If the Executive notifies the
Corporation in writing (the "Opportunity Notice") within thirty (30) days after
the Executive has received the Confirmation Notice, the Executive (together with
counsel) shall be provided one opportunity to meet with the Incumbent Board (or
a sufficient quorum thereof) to discuss such act or acts. Such opportunity to
meet with the Incumbent Board shall be fixed and shall occur on a date selected
by the Incumbent Board, such date being not less than ten (10) nor more than
thirty (30) days after the Corporation receives the Opportunity Notice from the
Executive; PROVIDED, HOWEVER, that the Corporation may in good faith select a
later date if, and only if, such later date is necessary to convene a sufficient
quorum of the Incumbent Board to act in respect of the Executive's Opportunity
Notice. Such meeting shall take place at the principal offices of the
Corporation or such other location as agreed to by the Executive and the
Corporation. During the period commencing on the date the Corporation receives
the Opportunity Notice and ending on the date next succeeding the date on which
such meeting between the Incumbent Board (or a sufficient quorum thereof) and
the Executive is scheduled to occur, and not withstanding anything to the
contrary in this Agreement, the Executive shall be suspended from employment
with the Corporation (with pay, to the extent not prohibited by applicable law,
regulation, regulatory bulletin, and/or any other regulatory requirement, as the
same exists or may hereafter be promulgated or amended) and the Incumbent Board
may, during such suspension period, reasonably limit the Executive's access to
the principal offices of the Corporation or any of its assets. If the Incumbent
Board properly sets the date of such meeting and if the Incumbent Board (or a
sufficient quorum thereof) attends such meeting and in good faith does not
rescind its confirmation of Cause at such meeting or if the
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Executive fails to attend such meeting for any reason, the Executive's
employment by the Corporation shall, immediately upon the closing of such
meeting and the delivery to the Executive of the Notice of Termination, be
terminated for Cause under this Section 6.3. If the Executive does not respond
in writing to the Confirmation Notice in the manner and within the time period
specified in this Section 6.3, the Executive's employment with the Corporation
shall, upon the thirty-first day after the receipt by the Executive of the
Confirmation Notice, be terminated for Cause under this Section 6.3. In the
event of any dispute hereunder, the Executive shall be entitled, to the extent
not prohibited by applicable law, regulation, regulatory bulletin, and/or any
other regulatory requirement, as the same exists or may hereafter be promulgated
or amended, until the earlier to occur of (i) the Date of Termination, (ii) the
expiration of the current stated Term of Employment, or (iii) the resolution of
such dispute to (A) be paid bi-weekly his then Base Salary, and (B) continue to
receive all other benefits; and there shall be no reduction whatsoever of any
amounts subsequently paid to the Executive upon resolution of such dispute as a
result of, or in respect to, such interim payments or coverage. The procedure
set forth in this Section 6.3 to determine the existence of Cause shall at all
times be subject to the requirements of applicable law, regulation, regulatory
bulletin or other regulatory requirements.
6.4 TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. The Corporation
may terminate the Executive's employment hereunder at any time without Cause.
The Executive may terminate his employment hereunder for Good Reason at any time
by delivery of written notice to the Corporation within the six-month period
commencing after the occurrence of the Good Reason effective forty-five (45)
days after such written notice is delivered. If the Corporation terminates the
Executive's employment hereunder without Cause (other than due to Retirement,
death, Disability or the normal expiration of the full Term of Employment), or
if the Executive terminates his employment hereunder for Good Reason, the Term
of Employment shall thereupon end (if not already expired) and the Executive
shall, subject to Sections 2.2, 3.2, 6.10, and 6.11 of this Agreement, only be
entitled to:
(a) as liquidated damages, a cash lump sum equal to the greater of
$500,000 or the sum of the Base Salary and annual bonus payments that
would have accrued from the Date of Termination through the remaining Term
of Employment but for the Termination;
(b) any Base Salary accrued to the Date of Termination or any bonus
actually awarded, but not yet paid as of the Date of Termination;
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(c) reimbursement for all expenses (under Section 5.5) incurred as
of the Date of Termination, but not yet paid as of the Date of
Termination;
(d) payment of the per diem value of any unused vacation days
accruing during the Term of Employment and the unused, unaccrued portion
of any vacation days available through the end (but not beyond) of the
calendar year of the Corporation in which such termination occurs;
(e) continuation of the welfare benefits of the Executive, at the
level in effect (as provided for by Section 5.4 of this Agreement) on, and
at the same out-of-pocket cost to the Executive as of, the Date of
Termination for the longer of one year or the time period commencing on
the Date of Termination and continuing through the remaining Term of
Employment as if the same had not ended (or, if such continuation is not
permitted by applicable law or if the Board so determines in its sole
discretion, the Corporation shall provide the economic equivalent in lieu
thereof);
(f) any other compensation and benefits as may be provided in
accordance with the terms and provisions of any applicable plans or
programs, if any, of the Corporation or any Subsidiary; and
(g) any rights to indemnification in accordance with Section 11 of
this Agreement.
In the event of any dispute hereunder, the Executive shall be entitled until the
earlier to occur of (i) the Date of Termination, (ii) the expiration of the
current stated Term of Employment, or (iii) the resolution of such dispute to
(A) be paid bi-weekly his then Base Salary, and (B) continue to receive all
other benefits; and there shall be no reduction whatsoever of any amounts
subsequently paid to the Executive upon resolution of such dispute as a result
of, or in respect to, such interim payments or coverage.
6.5 VOLUNTARY TERMINATION. During the Term of Employment, the
Executive may effect, upon thirty (30) days prior written notice to the
Corporation, a Voluntary Termination of his employment hereunder and thereupon
the Term of Employment (if not already expired) shall end. A "Voluntary
Termination" shall mean a termination of employment by the Executive on his own
initiative other than (a) a termination due to death or Disability, (b) a
termination for Good Reason, (c) a termination as a result of the normal
expiration of the full Term of Employment. A Voluntary Termination shall,
subject to Sections 2.2, 3.2, 6.10, and 6.11 of this Agreement, entitle the
Executive only to all of the payments and benefits which the Executive
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would be entitled to in the event of a termination of his employment by the
Corporation for Cause.
6.6 NO MITIGATION; NO OFFSET. In the event of any termination of
employment under this Section 6, the Executive shall be under no obligation to
seek other employment or to mitigate damages and there shall be no offset
against any amounts
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due the Executive under this Agreement for any reason, including, without
limitation, on account of any remuneration attributable to any subsequent
employment that the Executive may obtain. Any amounts due under this Section 6
are in the nature of severance payments, or liquidated damages, or both, and are
not in the nature of a penalty.
6.7 NOTICE OF TERMINATION. Any termination of the Executive's
employment under this Section 6 requiring advance written notice shall be
communicated by a notice of termination to the other party hereto given in
accordance with Section 12.3 of this Agreement (the "Notice of Termination").
The Notice of Termination, in the case of a termination by the Corporation for
Cause, or a termination by the Executive for Good Reason, shall (a) indicate the
specific termination provision in this Agreement relied upon, and (b) set forth
in reasonable detail the dates, facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated.
6.7.1 MISCELLANEOUS. Any termination under this section 6
shall not effect Executive's position as a member of the Board of Directors of
the Corporation.
6.8 CERTAIN FURTHER PAYMENTS BY THE CORPORATION.
6.8.1 TAX REIMBURSEMENT PAYMENT. Anything in this Agreement to
the contrary notwithstanding, in the event that any amount of benefit or other
entitlement paid, payable, or to be paid, or distributed, distributable, or to
be distributed to or with respect to the Executive by the Corporation, the Bank,
any Subsidiary, any Parent, any other Affiliate, or any other party or entity
(collectively, the "Covered Payments"), is or becomes, at any time, as a result
of (a) any Internal Revenue Service claims or assertions, or (b) Section 6.8.2
below or otherwise, subject to the excise tax imposed by or under Section 4999
of the Code (or any similar tax that may hereafter be imposed), and/or any
interest or penalties with respect to such excise tax (such excise tax, together
with such interest and penalties, are hereinafter collectively referred to as
the "Excise Tax"), the Corporation shall pay to the Executive at the time
specified in Section 6.8.5 below an additional amount (the "Tax Reimbursement
Payment") such that after payment by the Executive of all taxes (including,
without limitation, any interest or penalties imposed with respect to such
taxes), including, without limitation, any Excise Tax, imposed on or
attributable to the Tax Reimbursement Payment provided by this Agreement, the
Executive retains an amount of the Tax Reimbursement Payment equal to the sum of
(a) the amount of the Excise Tax imposed upon the Covered Payments, and (b) an
amount equal to the product of (i) any deductions disallowed for
15
federal, state or local income tax purposes because of the inclusion of the Tax
Reimbursement Payment in the Executive's adjusted gross income, and (ii) the
highest applicable marginal rate of federal, state or local income taxation,
respectively, for the calendar year in which the Tax Reimbursement Payment is
made or is to be made.
6.8.2 DETERMINING EXCISE TAX. Except as otherwise provided in
Section 6.8.1(a), for purposes of determining whether any of the Covered
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
(a) such Covered Payments will be treated as "parachute payments"
(within the meaning of Section 280G(b)(2) of the Code) and such payments
in excess of the Code Section 280G(b)(3) "base amount" shall be treated as
subject to the Excise Tax, unless, and except to the extent that, the
Corporation's independent certified public accountants (the "Accountants")
or legal counsel reasonably acceptable to the Executive, deliver timely,
upon the Executive's request, a written opinion, reasonably satisfactory
to the Executive's legal counsel, to the Executive that the Executive has
a reasonable basis to claim that the Covered Payments (in whole or in
part) (i) do not constitute "parachute payments", (ii) represent
reasonable compensation for services actually rendered (within the meaning
of Section 280G(b)(4) of the Code) in excess of the "base amount"
allocable to such reasonable compensation, or (iii) such "parachute
payments" are otherwise not subject to such Excise Tax (with appropriate
legal authority, detailed analysis and explanation provided therein by the
Accountants); and
(b) the value of any Covered Payments which are non-cash benefits or
deferred payments or benefits shall be determined by the Accountants in
accordance with the principles of Section 280G of the Code.
6.8.3 APPLICABLE TAX RATES AND DEDUCTIONS. For purposes of
determining the amount of the Tax Reimbursement Payment, the Executive shall be
deemed:
(a) to pay federal, state and/or local income taxes at the highest
applicable marginal rate of income taxation for the calendar year in which
the Tax Reimbursement Payment is made or is to be made, and
(b) to have otherwise allowable deductions for federal, state and
local income tax purposes at least equal to those disallowed due to the
inclusion of the Tax Reimbursement Payment in the Executive's adjusted
gross income.
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6.8.4 SUBSEQUENT EVENTS. If, pursuant to a written opinion,
reasonably satisfactory to the Executive, of the
17
Accountants (or legal counsel reasonably acceptable to the Executive) delivered
and addressed to the Executive, the Excise Tax is subsequently determined on a
reasonable basis and in good faith (other than as a result of a tax contest) to
be less than the amount taken into account hereunder in calculating any Tax
Reimbursement Payment made, the Executive shall repay to the Corporation the
portion of any prior Tax Reimbursement Payment that would not have been paid if
such redetermined Excise Tax had been applied in calculating such Tax
Reimbursement Payment, plus interest on the amount of such repayment at the
mid-term discount rate provided in Section 1274(b)(2)(B) of the Code.
Notwithstanding the immediately foregoing sentence, if any portion of the Tax
Reimbursement Payment to be refunded to the Corporation has been paid to any
federal, state or local tax authority, repayment thereof shall not be required
until an actual refund or credit of such portion has been made to or obtained by
the Executive from such tax authority, and any interest payable to the
Corporation shall not exceed the interest received or credited to the Executive
by any such tax authority. The Executive shall be fully indemnified by the
Corporation for any out-of-pocket costs, expenses or fees attributable to the
filing of any refund or other claim. The Executive and the Corporation shall
mutually agree upon the course of action to be pursued (and the method of
allocating the expenses thereof) if any good faith claim for refund or credit
from such tax authority made by the Executive is denied.
Notwithstanding the immediately preceding paragraph, if, in the
written opinion of the Executive's tax advisors delivered to the Accountants and
the Corporation, the Excise Tax is later determined to exceed the amount taken
into account by the Accountants or legal counsel, as the case may be, hereunder
at the time any Tax Reimbursement Payment is made by reason of (i) manifest
error, (ii) any payment the existence or amount of which could not be or was not
determined or known about at the time of any Tax Reimbursement Payment, or (iii)
any determination, claim or assertion made by any tax authority that the Excise
Tax is or should be greater than the amount of such Excise Tax taken into
account previously by the Accountants or legal counsel, as the case may be, or
as otherwise previously determined, the Corporation shall make an additional Tax
Reimbursement Payment in respect of such excess Excise Tax (which Tax
Reimbursement Payment shall include, without limitation, any interest or
penalties payable with respect to such excess Excise Tax) at the time specified
in Section 6.8.5 below. With respect to this Section 6.8.4, if any such tax
authority makes such a determination, the Executive shall notify the Corporation
of such occurrence. If the Corporation obtains (at the Corporation's sole
expense) an opinion of legal counsel addressed, delivered and reasonably
satisfactory to the Executive that it is more likely than not that the Executive
would succeed in disputing such claim, assertion or determination of such tax
authority, the Executive shall, at the sole expense of the Corporation, make a
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good faith effort to contest such claim, assertion or determination of such tax
authority in all relevant administrative proceedings (excluding any appeals
thereof); PROVIDED, HOWEVER, that if the Executive determines in good faith that
the continued contest of any such claim, assertion or determination with such
tax authority would have an adverse impact on his overall tax position (which
good faith determination shall take into account the magnitude of the amounts
involved), then, upon receipt of notice by the Corporation from the Executive to
that effect, the Executive shall, without foregoing any right to receive any Tax
Reimbursement Payment described in this Section 6.8, have no further obligation
to pursue any such contest with any such tax authority. The Executive may, as a
condition to pursuing or commencing any contest described in this Section 6.8.4
in any proceedings (which proceedings shall be in a forum chosen at the sole
discretion of the Executive), require the Corporation to advance any amount of
tax required to be paid in order to pursue such contest. In conducting any
contest described in this Section 6.8.4, the Executive shall use his best
efforts to keep the Corporation advised and will permit the Corporation to
prepare and suggest appropriate responses and actions that may be reasonably
made or taken by the Executive. Notwithstanding the above, the decisions as to
such responses or actions shall be solely that of the Executive and the
Executive shall have the sole right to control the proceeding. The Corporation
shall bear all expenses of any proceeding relating to any contest described in
this Section 6.8.4, whether incurred by the Corporation or the Executive,
including, without limitation, all fees and disbursements of attorneys,
accountants and expert witnesses and any additional interest or penalties
applicable. Nothing contained in this Agreement shall under any circumstances
give the Corporation any right to examine the tax returns or any other records
of the Executive.
6.8.5 DATE OF PAYMENT. A Tax Reimbursement Payment, as
provided for in this Section 6.8, shall be paid to the Executive not later than
10 business days following the payment of any Covered Payments which are
"parachute payments" under Section 6.8.2 above; PROVIDED, HOWEVER, that any
additional Tax Reimbursement Payment payable to the Executive under Section
6.8.4 of this Agreement shall be paid to the Executive not later than 15
business days following the actual receipt by the Accountants and the
Corporation of the written opinion of the Executive's tax advisors, as provided
for therein.
6.9 PAYMENT. Except as otherwise provided in this Agreement, any
payments to which the Executive shall be entitled to under this Section 6,
including, without limitation, any economic equivalent of any benefit, shall be
made, to the extent practicable, within five (5) business days following the
Date of Termination.
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6.10 CORPORATION REGULATORY LIMITATIONS. Any payments made to the
Executive pursuant to this Agreement, or otherwise, are subject to and
conditioned upon their compliance with 12 U.S.C. ss. 1828(k) and any regulations
promulgated thereunder.
6.11 OTHER REQUIRED PROVISIONS.
6.11.1 If the Bank is in default (as defined in Section
3(x)(1) of the Federal Deposit Insurance Act), all obligations under this
Agreement shall terminate as of the date of default, but this Section 6.11.1
shall not affect the vested rights of the Corporation and/or the Executive, if
any.
6.11.2 All obligations under this Agreement shall be
terminated, except to the extent determined that continuation of this Agreement
is necessary for the continued operation of the Bank, (i) by the director, or
his or her designee, at the time the Federal Deposit Insurance Corporation or
the Resolution Trust Corporation enters into an agreement to provide assistance
to or on behalf of the Bank under the authority contained in Section 13(c) of
the Federal Deposit Insurance Act; or (ii) by the director, or his designee, at
the time the director, or his or her designee, approves a supervisory merger to
resolve problems related to operation of the Bank or when the Bank is determined
by such director to be in an unsafe or unsound condition. Any rights of the
parties that have already vested, however, shall not be affected by any such
actions.
6.12 POST-TERMINATION OBLIGATIONS. During the Term of Employment and
for one (1) full year after the expiration or termination thereof, the Executive
shall, upon reasonable notice, use his reasonable best efforts to cooperate with
the Corporation and/or the Bank by providing such information and assistance to
the Corporation and/or the Bank as may reasonably be required by the Corporation
and/or the Bank at the Corporation's expense in connection with any litigation
not commenced by or involving the Executive in which the Corporation and/or the
Bank or any of their Subsidiaries or Affiliates is, or may become, a party.
20
7. NON-EXCLUSIVITY OF RIGHTS; NON-EXTENSION SEVERANCE.
7.1 OTHER BENEFITS. Except as is otherwise specifically provided in
this Agreement, the Executive's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided or maintained by the
Corporation and/or the Bank, and for which the Executive may be eligible and
qualify, shall not be prevented or limited, and the Executive's rights under any
future agreements with the Corporation and/or the Bank and/or any Affiliate
thereof, including, without limitation, any stock option agreements shall not be
limited or prejudiced. This Agreement shall not affect or operate to reduce any
benefit or compensation inuring to the Executive of a kind elsewhere provided.
Except as otherwise specifically provided in this Agreement, no provision of
this Agreement shall be interpreted to mean or result in the Executive receiving
fewer benefits than those available to him without reference to this Agreement.
8. RESOLUTION OF DISPUTES.
8.1 With the exception of proceedings for equitable relief brought
pursuant to this Section or Section 9.2 of this Agreement, any dispute or
controversy arising under or in connection with this Agreement may, at the
Executive's option, be settled exclusively by arbitration in Melville, Long
Island in accordance with the rules of the American Arbitration Association then
in effect and at the Corporation's expense. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, HOWEVER, that the
Executive shall be entitled to seek specific performance in court 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. If a claim for
any payments or benefits under this Agreement or any other provision of this
Agreement is disputed by the Corporation and the Executive, the Executive shall,
to the extent and at such time or times as is not prohibited by applicable law,
regulation, regulatory bulletin, and/or any other regulatory requirement, as the
same exists or may be hereafter promulgated or amended, be reimbursed for all
reasonable attorney's fees and expenses incurred by the Executive in pursuing
such claim.
9. CONFIDENTIAL INFORMATION.
9.1 CONFIDENTIALITY. The Executive will not, during or after the
Term of Employment, disclose any confidential information relating to the
business activities of the Corporation or any Affiliate thereof which has not
been previously disclosed by any person to any person, firm, corporation, bank
or other entity for any reason or purpose
21
whatsoever. Notwithstanding the foregoing, the Executive may disclose any
knowledge or other information relating to banking, financial and/or economic
principles, concepts or ideas which are based on experience and which are not
derived from the business plans and activities of the Corporation, and may
disclose such confidential information in connection with legal and/or
regulatory proceedings (which shall include, but not limited to, formal or
informal exams, investigations or inquiries conducted by the Office of Thrift
Supervision).
9.2 INJUNCTIVE RELIEF. The Executive acknowledges and agrees that
the Corporation will have no adequate remedy at law, and would be irreparably
harmed, if the Executive breaches or threatens to breach any of the provisions
of this Section 9 of this Agreement. The Executive agrees that the Corporation
shall be entitled to equitable and/or injunctive relief to prevent any breach or
threatened breach of this Section 9, and to specific performance of each of the
terms of such Section in addition to any other legal or equitable remedies that
the Corporation may have. The Executive further agrees that he shall not, in any
equity proceeding relating to the enforcement of the terms of this Section 9,
raise the defense that the Corporation has an adequate remedy at law.
9.3 SPECIAL SEVERABILITY. The terms and provisions of this Section 9
are intended to be separate and divisible provisions and if, for any reason, any
one or more of them is held to be invalid or unenforceable, neither the validity
nor the enforceability of any other provision of this Agreement shall thereby be
affected.
10. SUCCESSORS.
10.1 THE EXECUTIVE. This Agreement is personal to the Executive and,
without the prior express written consent of the Corporation, shall not be
assignable by the Executive, except that the Executive's rights to receive any
compensation or benefits under this Agreement may be transferred or disposed of
pursuant to testamentary disposition, intestate succession or pursuant to a
qualified domestic relations order. This Agreement shall inure to the benefit of
and be enforceable by the Executive's heirs, beneficiaries and/or legal
representatives.
10.2 THE CORPORATION. This Agreement shall inure to the benefit of
and be binding upon the Corporation and its successors and assigns; PROVIDED,
HOWEVER, that no assignment of this Agreement may be made without the written
consent of the Executive.
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11. INDEMNIFICATION.
11.1 The Executive (and his heirs, executors and administrators)
shall be indemnified and held harmless by the Corporation to the fullest extent
permitted by applicable law, regulation, regulatory bulletin, and/or any other
regulatory requirement, as the same exists or may hereafter be promulgated or
amended, against all expense, liability and loss (including, without limitation,
attorneys' fees, judgments, fines, excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by the Executive as a
consequence of the Executive being or having been made a party to, or being or
having been involved, in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that the Executive is or was a trustee, director or officer of the
Corporation or is or was serving at the request of the Corporation as a trustee,
director or officer of another corporation (including, but not limited to, a
subsidiary or an Affiliate of the Corporation), and such indemnification shall
continue after the Executive shall cease to be an officer, director or trustee.
The right to indemnification conferred hereby shall be a contract right and
shall also include, to the extent permitted by applicable regulation, the right
to be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of the final disposition upon receipt by the Corporation
of an undertaking by or on behalf of the Executive to repay such amount or a
portion thereof, if it shall ultimately be determined that the Executive is not
entitled to be indemnified by the Corporation pursuant hereto or as otherwise
authorized by law but such repayment by the Executive shall only be in an amount
ultimately determined to exceed the amount to which the Executive was entitled
to be indemnified.
12. MISCELLANEOUS.
12.1 APPLICABLE LAW. This Agreement shall, to the extent not
superseded by federal law, be governed by and construed in accordance with the
laws of the State of New York, without regard to principles of conflict of laws.
12.2 AMENDMENTS/WAIVER. This Agreement may not be amended, waived,
or modified otherwise than by a written agreement executed by the parties to
this Agreement or their respective successors and legal representatives. No
waiver by any party to this Agreement of any breach of any term, provision
23
or condition of this Agreement by the other party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same time, or any prior or
subsequent time.
12.3 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given when received by hand-delivery to the
other party, by facsimile transmission, by overnight courier, or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive: Mr. Lawrence W. Peters
143 Cabot Road
Massapequa, New York 11758
If to the Corporation: Long Island Bancorp. Inc.
201 Old Country Road
Melville, New York 11747
Attn: Corporate Secretary
24
with a copy to: Mel M. Immergut, Esq.
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
12.4 WITHHOLDING. The Corporation may withhold from any amounts
payable under this Agreement such taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
12.5 SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
12.6 CAPTIONS. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
12.7 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties to this Agreement concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect thereto.
12.8 REPRESENTATION. The Executive represents and warrants that the
performance of the Executive's duties and obligations under this Agreement will
not violate any agreement between the Executive and any other person, firm,
partnership, corporation, or organization.
12.9 SURVIVORSHIP. The respective rights and obligations of the
parties to this Agreement, including, without limitation, any rights of the
Executive and the Corporation under Section 11 of this Agreement, shall survive
any termination of this Agreement or the Executive's employment hereunder for
any reason to the extent necessary to the intended preservation of such rights
and obligations.
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12.10 EFFECT OF PAYMENTS UNDER BANK AGREEMENT. Notwithstanding any
provision herein to the contrary, to the extent that payments, entitlements and
benefits are paid to or received by the Executive under the Employment Agreement
dated March 1, 1997, between the Executive and the Bank, the amount of any such
payments, entitlements and benefits actually made by the Bank shall reduce, to
the extent so made, the same payment, entitlement or benefit due to the
Executive under the provisions of this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and the Corporation has caused this Agreement to be executed in its name on
its behalf, and its corporate seal to be hereunto affixed and attested by its
Secretary, all as of the day and year first above written.
LONG ISLAND BANCORP, INC.
By: _____________________________
John J. Conefry, Jr.
Chief Executive Officer
---------------------------------
Lawrence W. Peters
EXHIBIT 99.2
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated as of August 4,
1997, is made by and between Long Island Bancorp, Inc., a Delaware corporation,
having its principal offices at 201 Old Country Road, Melville, New York 11747
(the "Corporation"), and Ms. Karen M. Cullen, residing at 20 East Ninth Street,
New York, New York 10003 (the "Executive").
RECITALS
1. The Corporation desires to employ the Executive as an Executive
Vice President and the General Counsel of the Corporation, and to enter into an
employment agreement embodying the terms of such relationship.
2. The Executive is willing to be employed as an Executive Vice
President and the General Counsel of the Corporation on the terms set forth
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, and for other good and valuable consideration, the
Corporation and the Executive hereby agree as follows.
1. DEFINITIONS.
1.1 "AFFILIATE" means any person or entity of any kind effectively
controlling, effectively controlled by or effectively under common control with
the Corporation, including, without limitation, The Long Island Savings Bank,
FSB (the "Bank").
1.2 "BOARD" means the board of directors of the Corporation.
1.3 "CAUSE" means termination due to the Executive's (a) personal
dishonesty, (b) incompetence, (c) willful misconduct, (d) breach of fiduciary
duty involving personal profit, (e) intentional failure to perform stated
duties, (f) willful violation of any law, rule or regulation (other than traffic
violations or similar offenses), or final cease-and-desist order, or (g)
material breach of any provision of this Agreement.
1.4 "CHANGE IN CONTROL" means, after the date of this Agreement, (a)
a change in control of the Corporation and/or the Bank of a nature that would be
required to be reported in response to Item 1 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, as amended (the "Exchange Act"); (b) a change
in control of the Bank within the meaning of 12 U.S.C. ss. 1817(i), the Change
in Bank Control Act, and 12 C.F.R.
ss. 574.4 of the Acquisition of Control of Savings Association regulations of
the Office of Thrift Supervision; (c) individuals who constitute the Board as of
the date of this Agreement (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 of this Agreement whose election was approved by
a vote of at least three-quarters of the directors then comprising the Incumbent
Board, or whose nomination for election by the Corporation's shareholders was
approved by the Corporation's nominating committee then serving under the Board,
shall be, for purposes of this clause (c), considered as though he or she was a
member of the Incumbent Board (but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of either an
actual or threatened election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other actual or threatened
solicitation of proxies or consents); (d) approval by the shareholders of the
Bank and/or the Corporation, as the case may be, of a reorganization, merger or
consolidation, or the consummation of any such reorganization, merger or
consolidation, other than a reorganization, merger or consolidation with respect
to which all or substantially all of the individuals and entities who were the
beneficial owners, immediately prior to such reorganization, merger or
consolidation, of the Voting Interest in the Bank and/or the Corporation, as the
case may be, beneficially own, directly or indirectly, immediately after such
reorganization, merger or consolidation more than 80% of the Voting Interest of
the corporation or other entity resulting from such reorganization, merger or
consolidation in substantially the same proportions as their respective
ownership, immediately prior to such reorganization, merger or consolidation, of
the Voting Interest in the Bank and/or the Corporation, as the case may be; (e)
approval by the shareholders of the Bank and/or the Corporation, as the case may
be, of (i) a complete liquidation or dissolution of the Bank and/or the
Corporation, or (ii) the sale or other disposition of all or substantially all
of the assets of the Bank and/or the Corporation or the occurrence of any such
liquidation, dissolution, sale or other disposition, other than, in any case, to
a Subsidiary, directly or indirectly, of the Corporation or any Affiliate;
and/or (f) the solicitation of proxies from shareholders of the Corporation by
someone other than the current management of the Corporation and without the
approval of the Board, seeking shareholder approval of a plan of reorganization,
merger or consolidation of the Bank and/or the Corporation with one or more
corporations as a result of which the shareholders' interests in the Bank and/or
the Corporation, as the case may be, are actually exchanged for or converted
into securities not issued by the Bank or the Corporation, as the case may be.
No failure on the part of the Executive to exercise any
rights upon the occurrence of a Change in Control shall be deemed a waiver of or
otherwise impair the rights of the Executive in respect of any subsequent events
or circumstances constituting a Change in Control.
1.5 "CODE" means the Internal Revenue Code of 1986, as amended, and
as in effect from time to time, and/or any successor code thereto.
1.6 "GOOD REASON" means, and shall be deemed to exist if, without
the written consent of the Executive, (a) the Corporation fails to appoint or
reappoint the Executive as an Executive Vice President and the General Counsel
of the Corporation, (b) there occurs any reduction of Base Salary or material
reduction in other benefits or any material change by the Corporation to the
Executive's function, duties, or responsibilities in effect on the date hereof
and/or as set forth in Section 4.1 of this Agreement, which change would cause
the Executive's position with the Corporation to become one of lesser
responsibility, importance, or scope from the position and attributes thereof in
effect on the date hereof and/or as set forth in Section 4.1 of this Agreement
(and any such material change shall be deemed a continuing breach of this
Agreement), (c) there occurs any material breach of this Agreement by the
Corporation, (d) a Change in Control occurs, or (e) the Corporation, if and
after a Suspension for Disability (as defined in Section 6.2(a)) occurs and
after a Change in Control occurs, fills the Executive's position (in the manner
set forth in Section 6.2(b) of this Agreement).
1.7 "PARENT" means any corporation which has a direct or indirect
legal or beneficial ownership interest in the Corporation, but only if any such
corporation owns or controls, directly or indirectly, securities possessing at
least 50% of the total combined voting power of all classes of securities of the
Corporation.
1.8 "SUBSIDIARY" means any corporation (other than the Corporation)
in which the Corporation or any Parent has a direct or indirect legal or
beneficial ownership interest, but only if the Corporation or the Parent, as the
case may be, owns or controls, directly or indirectly, securities possessing at
least 50% of the total combined voting power of all classes of securities in any
such corporation.
1.9 "RETIREMENT" means the termination of the Executive's employment
with the Corporation for any reason by the Executive at any time after the
Executive attains age 65.
1.10 "VOTING INTEREST" means securities of any class or classes or
other ownership interests having general voting power under ordinary
circumstances to elect members of a board of directors or trustees of any
entity.
2. EMPLOYMENT.
2.1 GENERAL. Subject to the terms and provisions set forth in this
Agreement, the Corporation, during the Term of Employment, agrees to employ the
Executive as an Executive Vice President and the General Counsel of the
Corporation and the Executive hereby accepts such employment.
2.2 OTS SUSPENSION. 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 (g)(1) of the Federal Deposit
Insurance Act (12 U.S.C. ss.ss. 1818(e)(3) and (g)(1)), the Corporation's
obligations under this Agreement shall be suspended as of the date of service,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Corporation may in its discretion (i) pay the Executive all or
part of the compensation withheld while its contract obligations were suspended,
and (ii) reinstate (in whole or in part) any of its obligations which were
suspended.
3. TERM OF EMPLOYMENT.
3.1 TERM. The term of employment under this Agreement shall commence
as of August 4, 1997 (the "Commencement Date") and, unless extended as provided
below or earlier terminated by the Corporation or the Executive under Section 6
of this Agreement, shall continue until the third anniversary of the
Commencement Date (the "Term of Employment"). The Term of Employment shall
automatically be extended on each anniversary of the Commencement Date for an
additional one year period unless, not later than six months prior to the next
such anniversary, either party to this Agreement shall give written notice to
the other that she or it does not wish to extend or further extend the Term of
Employment beyond its then already automatically extended term, if any.
3.2 OTS REMOVAL. Notwithstanding anything to the contrary in this
Agreement, 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 (g)(1) of the Federal Deposit Insurance Act (12 U.S.C. ss.ss.
1818(e)(4) or (g)(1)), all obligations of the Corporation under this Agreement
shall terminate as of the effective date of the order, but vested rights of the
Corporation and/or the Executive, if any, shall not be affected.
4. POSITIONS, RESPONSIBILITIES AND DUTIES.
4.1 POSITIONS AND DUTIES. During the Term of Employment, the
Executive shall be employed and shall serve as an Executive Vice President and
the General Counsel of the Corporation. In such position(s), the Executive shall
have the duties, responsibilities and authority as determined and designated
from time to time by the Board. The Executive shall serve under the direction
and supervision of the Corporation's chief executive officer and shall report
only to such chief executive officer
or his designees. Notwithstanding the above, the Executive shall not be required
to perform any duties and responsibilities (a) which would result in a
non-compliance with or violation of any applicable law, regulation, regulatory
bulletin, and/or any other regulatory requirement or (b) on a regular basis in
any locations outside the counties of Nassau, Suffolk or the City of New York
unless agreed upon by the Executive.
4.2 ATTENTION TO DUTIES AND RESPONSIBILITIES. During the Term of
Employment, the Executive shall, except for periods of absence occasioned by
illness, vacation in accordance with Section 5.6, and reasonable leaves of
absence in accordance with the practices of the Corporation and the Bank as of
the date of this Agreement, devote substantially all of her business time to the
business and affairs of the Corporation and the Bank and the Executive shall use
her best efforts, business skills, ability and fidelity to perform faithfully
and efficiently the duties and responsibilities contemplated by this Agreement;
provided, however, that the Executive shall be allowed, to the extent such
activities do not present a conflict or substantially interfere with the
performance by the Executive of her duties and responsibilities hereunder, (a)
to manage the Executive's personal affairs, and (b)(i) to serve on boards or
committees of civic or charitable organizations or trade associations, and (ii)
after obtaining the consent of the Board, as evidenced by a written resolution
of the Board and under the terms and conditions specified in any such
resolution, to serve on the boards of directors or trustees of companies or
other organizations and associations; provided, further, however, that all
offices or positions which the Executive currently holds or has held prior to
the date of this Agreement and those set forth on Exhibit "A", annexed hereto
are designated as currently consented to positions.
5. COMPENSATION AND OTHER BENEFITS.
5.1 BASE SALARY. During the Term of Employment, the Executive shall
receive a base salary of no less then $185,000 per annum ("Base Salary") payable
in accordance with the Corporation's normal payroll practices. Such Base Salary
shall be reviewed from time to time by the Board at its convenience, but no less
frequently than annually, for increase by the Board in its sole discretion. Such
Base Salary as so increased shall then constitute the Executive's "Base Salary"
for purposes of this Agreement.
5.2 ANNUAL BONUS. During the Term of Employment, the Executive shall
be entitled to participate in an equitable manner with other executive officers
of the Corporation in such discretionary bonus payments or awards as may be
authorized, declared, and paid by the Board to the Corporation's executive
employees; provided, however, that the annual bonus paid to the Executive
following a Change in Control shall not be less than the highest annual bonus
paid during the Term of Employment. No other compensation or additional benefits
provided for in this Agreement shall be deemed a substitute for the Executive's
right, if any, to receive such bonuses if, when and as declared by the Board.
5.3 INCENTIVE, RETIREMENT, AND SAVINGS PLANS. During the Term of
Employment, the Executive shall participate in all incentive, pension,
retirement, savings and other employee benefit plans and programs, if any,
maintained from time to time by the Corporation and/or the Bank for the benefit
of senior executives and/or other employees of the Corporation and/or the Bank.
5.4 WELFARE BENEFIT PLANS. During the Term of Employment, the
Executive, the Executive's spouse, if any, and their eligible dependents, if
any, shall participate in and be covered by all the welfare benefit plans and
programs, if any, maintained by the Corporation and/or the Bank for the benefit
of senior executives and/or other employees of the Corporation and/or the Bank.
5.5 EXPENSE REIMBURSEMENT. During the Term of Employment, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses, including reasonable business travel expenses, incurred by the
Executive in performing her duties and responsibilities hereunder in accordance
with the policies and procedures of the Corporation as in effect at the time the
expense was incurred, as the same may be changed from time to time.
5.6 VACATION AND FRINGE BENEFITS. During the Term of Employment, the
Executive shall be entitled to five weeks paid vacation each calendar year at
such times which do not materially interfere with the performance of the
Executive's duties hereunder. In addition, during the Term of Employment, the
Executive shall be eligible to benefit from such fringe benefits and
perquisites, if any, in accordance with the policies of the Corporation and as
in effect and provided from time to time to senior executives of the Corporation
and/or the Bank. Notwithstanding the above, the Executive, during the Term of
Employment, shall retain, pursuant to current policy and practice of the
Corporation and/or the Bank, all privileges, if any, including club memberships
and automobile usage to which she is entitled on the date of this Agreement.
6. TERMINATION.
6.1 TERMINATION DUE TO DEATH. In the event of the Executive's death
during the Term of Employment, the Term of Employment shall thereupon end and
her estate or other legal representative, as the case may be, shall, subject to
Sections 2.2, 3.2, 6.11, and 6.12 of this Agreement, only be entitled to:
(a)(i)(A) Base Salary continuation at two-thirds (2/3) of the rate
in effect (as provided in Section 5.1 of this Agreement) on the date of
termination for a three-month period commencing on such date of termination, or
(B), if the Board so determines in its sole discretion and in lieu of such
three-month salary continuation described above in (A), a lump sum payment equal
in amount to the present value of such Base Salary
continuation (reasonably determined using a discount rate equal to the most
recent quote available for the three-month United States Treasury Bill rate on
the date of termination) payable within thirty business days after the date of
termination, and (ii) a pro-rata annual bonus for the fiscal year in which such
termination occurs, such pro-rata bonus amount to be (I) pro-rated based on the
number of calendar days transpired during the fiscal year of the Corporation
(prior to the date of termination) in which such termination occurs over 365,
(II) determined in good faith by the Board (but in its sole discretion), and
(III) if any such bonus is payable, paid on or about the same date that the
annual bonus amounts payable in respect of such fiscal year, if any, to the
senior executives of the Corporation and/or the Bank are actually paid to them;
(b) any Base Salary accrued to the date of termination or any bonus
actually awarded, but not yet paid as of the date of termination;
(c) reimbursement for all expenses (under Section 5.5) incurred as
of the date of termination, but not yet paid as of the date of termination;
(d) payment of the per diem value of any unused vacation days
accruing during the Term of Employment and the unused, unaccrued portion of any
vacation days available through the end (but not beyond) of the calendar year of
the Corporation in which such termination occurs;
(e) any other compensation and benefits as may be provided in
accordance with the terms and provisions of any applicable plans and programs,
if any, of the Corporation or any Subsidiary; and
(f) any rights to indemnification in accordance with Section 11 of
this Agreement.
6.2 SUSPENSION FOR DISABILITY.
(a) If, during the Term of Employment, the Executive shall have been
absent from her duties hereunder on a full-time basis due to physical or mental
illness for six (6) consecutive months, the Corporation may give thirty (30)
days written notice of potential suspension. If the Executive shall not have
returned to the full-time performance of her duties within such 30-day period,
the Corporation may suspend the Executive's employment for "Disability" (a
"Suspension for Disability").
(b) If a Suspension for Disability occurs during the Term of
Employment, the Corporation will pay the Executive a bi-weekly payment equal to
two-thirds (2/3) of the Executive's bi-weekly rate of Base Salary on the
effective date of the Suspension for Disability. These payments shall commence
on the effective date of the Executive's Suspension for Disability and will end
on the earlier of (i) the date the Executive returns to full-time employment
hereunder; (ii) the Executive's equivalent full-time employment by another
employer; (iii) the Executive's retirement; (iv) the Executive's death; or (v)
the expiration or earlier end of the Term of Employment (the
"Term of Suspension"). After a Suspension for Disability occurs, the Corporation
shall be free to fill the Executive's position(s), but such action by the
Corporation, shall constitute Good Reason if it occurs after a Change in
Control. Upon the Executive being able to return to full-time employment
hereunder before the expiration of the Term of Employment, the Executive shall
be offered an equivalent available position and otherwise be subject to the
provisions of this Agreement. The disability payments hereunder will be in
addition to any benefit payable from any qualified or nonqualified retirement
plans or programs maintained by the Corporation and/or the Bank but will be
reduced by payments received by the Executive on account of such disability
under any long-term disability plan maintained for the Corporation's and/or the
Bank's employees.
(c) During the Term of Suspension, the Corporation will cause to be
continued life and health coverage and such other benefits substantially
identical to the coverage and benefits maintained by the Corporation and/or the
Bank for the Executive prior to the occurrence of any Suspension for Disability.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation (except as otherwise provided in Section 6.2(b) above), accrued
benefits or pension granted or accruing to the Executive during the Term of
Suspension. Nothing in this Section 6.2 shall abrogate or limit other provisions
of this Agreement granting rights to the Executive or the Executive's spouse or
the Executive's estate following death, retirement or termination, if
applicable.
6.3 TERMINATION FOR CAUSE. The Corporation may terminate the
Executive's employment hereunder for Cause, upon fifteen (15) days written
notice to the Executive. If the Corporation terminates the Executive's
employment hereunder for Cause, the Term of Employment (if not already expired)
shall thereupon end as set forth below and the Executive shall, subject to
Sections 2.2, 3.2, 6.11, and 6.12 of this Agreement, only be entitled to:
(a) Base Salary up to and including the date of termination;
(b) any bonus actually awarded, but not yet paid as of the date of
termination;
(c) reimbursement for all expenses (under Section 5.5) incurred as
of the date of termination, but not yet paid as of the date of termination;
(d) payment of the per diem value of any unused vacation days
accruing during the Term of Employment and, to the extent not prohibited by
applicable law, regulation, regulatory bulletin, and/or any other regulatory
requirement, as the same exists or may hereafter be promulgated or amended, the
unused, unaccrued portion of any vacation days available through the end (but
not beyond) of the calendar year of the Corporation in which such termination
occurs;
(e) to the extent not prohibited by applicable law, regulation,
regulatory bulletin, and/or any other regulatory requirement, as the same exists
or may hereafter be promulgated or amended, any other compensation and benefits
as may be provided in accordance with the terms and provisions of any applicable
plans and programs, if any, of the Corporation or any Subsidiary; and
(f) any rights to indemnification in accordance with Section 11 of
this Agreement.
6.4 TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. The Corporation
may terminate the Executive's employment hereunder at any time without Cause.
The Executive may terminate her employment hereunder for Good Reason at any time
by delivery of written notice to the Corporation within the six-month period
commencing after the occurrence of the Good Reason effective forty-five (45)
days after such written notice is delivered. If the Corporation terminates the
Executive's employment hereunder without Cause (other than due to Retirement,
death, Disability or the normal expiration of the full Term of Employment), or
if the Executive terminates her employment hereunder for Good Reason, the Term
of Employment shall thereupon end (if not already expired) and the Executive
shall, subject to Sections 2.2, 3.2, 6.11, and 6.12 of this Agreement, only be
entitled to:
(a) as liquidated damages, a cash lump sum equal to three (3) times
the Executive's "Highest Annual Compensation" (as herein defined). For purposes
of this Agreement, "Highest Annual Compensation" shall mean the sum of (i) the
highest per annum rate of Base Salary, and (ii) the aggregate bonus amounts paid
to the Executive (or which would have been paid but for an election to defer
payment to a later period), in respect of any fiscal year of the Corporation at
any time during the Term of Employment;
(b) any Base Salary accrued to the date of termination or any bonus
actually awarded, but not yet paid as of the date of termination;
(c) reimbursement for all expenses (under Section 5.5) incurred as
of the date of termination, but not yet paid as of the date of termination;
(d) payment of the per diem value of any unused vacation days
accruing during the Term of Employment and the unused, unaccrued portion of any
vacation days available through the end (but not beyond) of the calendar year of
the Corporation in which such termination occurs;
(e) continuation of the welfare benefits of the Executive, at the
level in effect (as provided for by Section 5.4 of this Agreement) on, and at
the same out-of-pocket cost to the Executive as of, the date of termination for
the three-year period commencing on the date of termination (or, if such
continuation is not permitted by applicable law or if the Board so determines in
its sole discretion, the Corporation shall provide the economic equivalent in
lieu thereof);
(f) any other compensation and benefits as may be provided in
accordance with the terms and provisions of any applicable plans or programs, if
any, of the Corporation or any Subsidiary; and
(g) any rights to indemnification in accordance with Section 11 of
this Agreement.
6.5 VOLUNTARY TERMINATION. During the Term of Employment, the
Executive may effect, upon thirty (30) days prior written notice to the
Corporation, a Voluntary Termination of her employment hereunder and thereupon
the Term of Employment (if not already expired) shall end. A "Voluntary
Termination" shall mean a termination of employment by the Executive on her own
initiative other than (a) a termination due to death or Disability, (b) a
termination for Good Reason, (c) a termination due to Retirement, or (d) a
termination as a result of the normal expiration of the full Term of Employment.
A Voluntary Termination shall, subject to Sections 2.2, 3.2, 6.11, and 6.12 of
this Agreement, entitle the Executive only to all of the payments and benefits
which the Executive would be entitled to in the event of a termination of her
employment by the Corporation for Cause.
6.6 TERMINATION DUE TO RETIREMENT. The Executive may terminate the
Executive's employment hereunder due to Retirement upon thirty (30) days prior
written notice to the Corporation. If, during the Term of Employment, the
Executive's employment is so terminated due to Retirement, the Term of
Employment shall thereupon end and the Executive shall, subject to Sections 2.2,
3.2, 6.11, and 6.12 of this Agreement, only be entitled to:
(a) Base Salary up to and including the date of termination;
(b) any bonus actually awarded, but not yet paid as of the date of
termination;
(c) reimbursement for all expenses (under Section 5.5) incurred as
of the date of termination, but not yet paid as of the date of termination;
(d)(i) continuation of the Executive's welfare benefits (as
described in Section 5.4 of this Agreement) at the level in effect on the date
of termination for the one-year period following the termination of the
Executive's employment due to Retirement (or, if such continuation is not
permitted by applicable law or if the Board so determines
in its sole discretion, the Corporation shall provide the economic equivalent in
lieu thereof), and (ii) any other compensation and benefits as may be provided
in accordance with the terms and provisions of any applicable plans and
programs, if any, of the Corporation or any Subsidiary;
(e) payment of the per diem value of any unused vacation days
accruing during the Term of Employment and the unused, unaccrued portion of any
vacation days available through the end (but not beyond) of the calendar year of
the Corporation in which such termination occurs; and
(f) any rights to indemnification in accordance with Section 11 of
this Agreement.
6.7 NO MITIGATION; NO OFFSET. In the event of any termination of
employment under this Section 6, the Executive shall be under no obligation to
seek other employment or to mitigate damages and there shall be no offset
against any amounts due the Executive under this Agreement for any reason,
including, without limitation, on account of any remuneration attributable to
any subsequent employment that the Executive may obtain. Any amounts due under
this Section 6 are in the nature of severance payments, or liquidated damages,
or both, and are not in the nature of a penalty.
6.8 NOTICE OF TERMINATION. Any termination of the Executive's
employment under this Section 6 requiring advance written notice shall be
communicated by a notice of termination to the other party hereto given in
accordance with Section 12.3 of this Agreement (the "Notice of Termination").
The Notice of Termination, in the case of a termination by the Corporation for
Cause, or a termination by the Executive for Good Reason, shall (a) indicate the
specific termination provision in this Agreement relied upon, and (b) set forth
in reasonable detail the dates, facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated.
6.9 CERTAIN FURTHER PAYMENTS BY THE CORPORATION.
6.9.1 TAX REIMBURSEMENT PAYMENT. Anything in this Agreement to the
contrary notwithstanding, in the event that any amount of benefit or other
entitlement paid, payable, or to be paid, or distributed, distributable, or to
be distributed to or with respect to the Executive by the Corporation, the Bank,
any Subsidiary, any Parent, any other Affiliate, or any other party or entity
(collectively, the "Covered Payments"), is or becomes, at any time, as a result
of (a) any Internal Revenue Service claims or assertions, or (b) Section 6.9.2
below or otherwise, subject to the excise tax imposed by or under Section 4999
of the Code (or any similar tax that may hereafter be imposed), and/or any
interest or penalties with respect to such excise tax (such excise tax, together
with such
interest and penalties, are hereinafter collectively referred to as the "Excise
Tax"), the Corporation shall pay to the Executive at the time specified in
Section 6.9.5 below an additional amount (the "Tax Reimbursement Payment") such
that after payment by the Executive of all taxes (including, without limitation,
any interest or penalties imposed with respect to such taxes), including,
without limitation, any Excise Tax, imposed on or attributable to the Tax
Reimbursement Payment provided by this Agreement, the Executive retains an
amount of the Tax Reimbursement Payment equal to the sum of (a) the amount of
the Excise Tax imposed upon the Covered Payments, and (b) an amount equal to the
product of (i) any deductions disallowed for federal, state or local income tax
purposes because of the inclusion of the Tax Reimbursement Payment in the
Executive's adjusted gross income, and (ii) the highest applicable marginal rate
of federal, state or local income taxation, respectively, for the calendar year
in which the Tax Reimbursement Payment is made or is to be made.
6.9.2 DETERMINING EXCISE TAX. Except as otherwise provided in
Section 6.9.1(a), for purposes of determining whether any of the Covered
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
(a) such Covered Payments will be treated as "parachute payments"
(within the meaning of Section 280G(b)(2) of the Code) and such payments in
excess of the Code Section 280G(b)(3) "base amount" shall be treated as subject
to the Excise Tax, unless, and except to the extent that, the Corporation's
independent certified public accountants (the "Accountants") or legal counsel
reasonably acceptable to the Executive, deliver timely, upon the Executive's
request, a written opinion, reasonably satisfactory to the Executive's legal
counsel, to the Executive that the Executive has a reasonable basis to claim
that the Covered Payments (in whole or in part) (i) do not constitute "parachute
payments", (ii) represent reasonable compensation for services actually rendered
(within the meaning of Section 280G(b)(4) of the Code) in excess of the "base
amount" allocable to such reasonable compensation, or (iii) such "parachute
payments" are otherwise not subject to such Excise Tax (with appropriate legal
authority, detailed analysis and explanation provided therein by the
Accountants); and
(b) the value of any Covered Payments which are non-cash benefits or
deferred payments or benefits shall be determined by the Accountants in
accordance with the principles of Section 280G of the Code.
6.9.3 APPLICABLE TAX RATES AND DEDUCTIONS. For purposes of
determining the amount of the Tax Reimbursement Payment, the Executive shall be
deemed:
(a) to pay federal, state and/or local income taxes at the highest
applicable marginal rate of income taxation for the calendar year in which the
Tax Reimbursement Payment is made or is to be made, and
(b) to have otherwise allowable deductions for federal, state and
local income tax purposes at least equal to those disallowed due to the
inclusion of the Tax
Reimbursement Payment in the Executive's adjusted gross income.
6.9.4 SUBSEQUENT EVENTS. If, pursuant to a written opinion,
reasonably satisfactory to the Executive, of the Accountants (or legal counsel
reasonably acceptable to the Executive) delivered and addressed to the
Executive, the Excise Tax is subsequently determined on a reasonable basis and
in good faith (other than as a result of a tax contest) to be less than the
amount taken into account hereunder in calculating any Tax Reimbursement Payment
made, the Executive shall repay to the Corporation the portion of any prior Tax
Reimbursement Payment that would not have been paid if such redetermined Excise
Tax had been applied in calculating such Tax Reimbursement Payment, plus
interest on the amount of such repayment at the mid-term discount rate provided
in Section 1274(b)(2)(B) of the Code. Notwithstanding the immediately foregoing
sentence, if any portion of the Tax Reimbursement Payment to be refunded to the
Corporation has been paid to any federal, state or local tax authority,
repayment thereof shall not be required until an actual refund or credit of such
portion has been made to or obtained by the Executive from such tax authority,
and any interest payable to the Corporation shall not exceed the interest
received or credited to the Executive by any such tax authority. The Executive
shall be fully indemnified by the Corporation for any out-of-pocket costs,
expenses or fees attributable to the filing of any refund or other claim. The
Executive and the Corporation shall mutually agree upon the course of action to
be pursued (and the method of allocating the expenses thereof) if any good faith
claim for refund or credit from such tax authority made by the Executive is
denied.
Notwithstanding the immediately preceding paragraph, if, in the
written opinion of the Executive's tax advisors delivered to the Accountants and
the Corporation, the Excise Tax is later determined to exceed the amount taken
into account by the Accountants or legal counsel, as the case may be, hereunder
at the time any Tax Reimbursement Payment is made by reason of (i) manifest
error, (ii) any payment the existence or amount of which could not be or was not
determined or known about at the time of any Tax Reimbursement Payment, or (iii)
any determination, claim or assertion made by any tax authority that the Excise
Tax is or should be greater than the amount of such Excise Tax taken into
account previously by the Accountants or legal counsel, as the case may be, or
as otherwise previously determined, the Corporation shall make an additional Tax
Reimbursement Payment in respect of such excess Excise Tax (which Tax
Reimbursement Payment shall include, without limitation, any interest or
penalties payable with respect to such excess Excise Tax) at the time specified
in Section 6.9.5 below. With respect to this Section 6.9.4, if any such tax
authority makes such a determination, the Executive shall notify the Corporation
of such occurrence. If the Corporation obtains (at the Corporation's sole
expense) an opinion of legal counsel addressed, delivered and reasonably
satisfactory to the Executive that it is more likely than not that the Executive
would succeed in disputing such claim, assertion or determination of such tax
authority, the Executive shall, at the sole expense of the Corporation, make a
good faith effort to contest such claim, assertion or determination of such tax
authority in all relevant administrative proceedings (excluding any appeals
thereof); provided, however, that if the Executive determines in good faith that
the continued contest of any such claim, assertion or determination with such
tax authority
would have an adverse impact on her overall tax position (which good faith
determination shall take into account the magnitude of the amounts involved),
then, upon receipt of notice by the Corporation from the Executive to that
effect, the Executive shall, without foregoing any right to receive any Tax
Reimbursement Payment described in this Section 6.9, have no further obligation
to pursue any such contest with any such tax authority. The Executive may, as a
condition to pursuing or commencing any contest described in this Section 6.9.4
in any proceedings (which proceedings shall be in a forum chosen at the sole
discretion of the Executive), require the Corporation to advance any amount of
tax required to be paid in order to pursue such contest. In conducting any
contest described in this Section 6.9.4, the Executive shall use her best
efforts to keep the Corporation advised and will permit the Corporation to
prepare and suggest appropriate responses and actions that may be reasonably
made or taken by the Executive. Notwithstanding the above, the decisions as to
such responses or actions shall be solely that of the Executive and the
Executive shall have the sole right to control the proceeding. The Corporation
shall bear all expenses of any proceeding relating to any contest described in
this Section 6.9.4, whether incurred by the Corporation or the Executive,
including, without limitation, all fees and disbursements of attorneys,
accountants and expert witnesses and any additional interest or penalties
applicable. Nothing contained in this Agreement shall under any circumstances
give the Corporation any right to examine the tax returns or any other records
of the Executive.
6.9.5 DATE OF PAYMENT. A Tax Reimbursement Payment, as
provided for in this Section 6.9, shall be paid to the Executive not later than
10 business days following the payment of any Covered Payments which are
"parachute payments" under Section 6.9.2 above; provided, however, that any
additional Tax Reimbursement Payment payable to the Executive under Section
6.9.4 of this Agreement shall be paid to the Executive not later than 15
business days following the actual receipt by the Accountants and the
Corporation of the written opinion of the Executive's tax advisors, as provided
for therein.
6.10 PAYMENT. Except as otherwise provided in this Agreement, any
payments to which the Executive shall be entitled to under this Section 6,
including, without limitation, any economic equivalent of any benefit, shall be
made, to the extent practicable, within five (5) business days following the
date of termination.
6.11 CORPORATION REGULATORY LIMITATIONS. Any payments made to the
Executive pursuant to this Agreement, or otherwise, are subject to and
conditioned upon their compliance with 12 U.S.C. ss. 1828(k) and any regulations
promulgated thereunder.
6.12 OTHER REQUIRED PROVISIONS.
6.12.1 If the Bank is in default (as defined in Section 3(x)(1) of
the Federal Deposit Insurance Act), all obligations under this Agreement shall
terminate as of the date of default, but this Section 6.12.1 shall not affect
the vested rights of the Corporation and/or the Executive, if any.
6.12.2 All obligations under this Agreement shall be terminated,
except to the extent determined that continuation of this Agreement is necessary
for the continued operation of the Bank, (i) by the director, or his or her
designee, at the time the Federal Deposit Insurance Corporation or the
Resolution Trust Corporation enters into an agreement to provide assistance to
or on behalf of the Bank under the authority contained in Section 13(c) of the
Federal Deposit Insurance Act; or (ii) by the director, or his designee, at the
time the director, or his or her designee, approves a supervisory merger to
resolve problems related to operation of the Bank or when the Bank is determined
by such director to be in an unsafe or unsound condition. Any rights of the
parties that have already vested, however, shall not be affected by any such
actions.
6.13 POST-TERMINATION OBLIGATIONS. During the Term of Employment and
for one (1) full year after the expiration or termination thereof, the Executive
shall, upon reasonable notice, use her reasonable best efforts to cooperate with
the Corporation and/or the Bank by providing such information and assistance to
the Corporation and/or the Bank as may reasonably be required by the Corporation
and/or the Bank at the Corporation's expense in connection with any litigation
not commenced by or involving the Executive in which the Corporation and/or the
Bank or any of their Subsidiaries or Affiliates is, or may become, a party.
7. NON-EXCLUSIVITY OF RIGHTS; NON-EXTENSION SEVERANCE.
7.1 OTHER BENEFITS. Except as is otherwise specifically provided in
this Agreement, the Executive's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided or maintained by the
Corporation and/or the Bank, and for which the Executive may be eligible and
qualify, shall not be prevented or limited, and the Executive's rights under any
future agreements with the Corporation and/or the Bank and/or any Affiliate
thereof, including, without limitation, any stock option agreements shall not be
limited or prejudiced. Subject to Section 7.2 below, this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to the Executive
of a kind elsewhere provided. Except as otherwise specifically provided in this
Agreement, no provision of this Agreement shall be interpreted to mean or result
in the Executive receiving fewer benefits than those available to her without
reference to this Agreement.
7.2 NON-EXTENSION SEVERANCE. If (a)(i) the Executive's employment
hereunder is not terminated or suspended under Sections 6.1, 6.2, 6.3, 6.4, 6.5
or 6.6 of this Agreement prior to the expiration of the Term of Employment, or
(ii) any such termination or suspension of the Executive's employment is not
initiated prior to the expiration of the Term of Employment, (b) the Term of
Employment is not extended by the Corporation, and (c) the Executive's
employment with the Corporation terminates after the expiration of the Term of
Employment (other than for Cause), the Executive shall be entitled to receive,
in lieu of any severance payments or severance benefits under any other plan or
program maintained by the Corporation or any Affiliate, (1) Base Salary
continuation at the rate in effect (as provided in Section 5.1 of this
Agreement) as of the expiration of the Term of Employment, and (2) welfare
benefit continuation, at the
level in effect (as provided for by Section 5.4 of this Agreement) on, and at
the same out-of-pocket cost to the Executive as of, the expiration of the Term
of Employment, in each case (1) and (2), for the period ending six (6) months
after the Executive's employment terminates. Notwithstanding the above, if the
Board determines in its sole discretion and in lieu only of such Base Salary
continuation in (1), a lump sum payment, equal to the present value of such Base
Salary continuation (reasonably determined using the discount rate specified in
Section 6.1(a)(1)), shall be paid to the Executive within thirty (30) days after
the date the Executive's employment terminates. Notwithstanding anything to the
contrary in this Section 7.2, if (x) there occurs a Change in Control during the
Term of Employment, (y) the Term of Employment is not extended by the
Corporation up to and/or through the second anniversary of any such Change of
Control, and (z) the Executive's employment with the Corporation is subsequently
terminated (other than for Cause), the Executive, in lieu of the Base Salary and
welfare benefits continuation under this Section 7.2, shall be entitled to
receive the payments and benefits set forth in Section 6.4 of this Agreement.
8. RESOLUTION OF DISPUTES. With the exception of proceedings for equitable
relief brought pursuant to this Section or Section 9.2 of this Agreement, any
dispute or controversy arising under or in connection with this Agreement may,
at the Executive's option, be settled exclusively by arbitration in Melville,
Long Island in accordance with the rules of the American Arbitration Association
then in effect and at the Corporation's expense. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. If a claim for any payments
or benefits under this Agreement or any other provision of this Agreement is
disputed by the Corporation and the Executive, the Executive shall, to the
extent and at such time or times as is not prohibited by applicable law,
regulation, regulatory bulletin, and/or any other regulatory requirement, as the
same exists or may be hereafter promulgated or amended, be reimbursed for all
reasonable attorney's fees and expenses incurred by the Executive in pursuing
such claim.
9. CONFIDENTIAL INFORMATION.
9.1 CONFIDENTIALITY. The Executive will not, during or after the
Term of Employment, disclose any confidential information relating to the
business activities of the Corporation or any Affiliate thereof which has not
been previously disclosed by any person to any person, firm, corporation, bank
or other entity for any reason or purpose whatsoever. Notwithstanding the
foregoing, the Executive may disclose any knowledge or other information
relating to banking, financial and/or economic principles, concepts or ideas
which are based on experience and which are not derived from the business plans
and activities of the Corporation, and may disclose such confidential
information in connection with legal and/or regulatory proceedings (which shall
include, but not limited to, formal or informal exams, investigations or
inquiries conducted by the Office of Thrift Supervision).
9.2 INJUNCTIVE RELIEF. The Executive acknowledges and agrees that
the Corporation will have no adequate remedy at law, and would be irreparably
harmed, if the Executive breaches or threatens to breach any of the provisions
of this Section 9 of
this Agreement. The Executive agrees that the Corporation shall be entitled to
equitable and/or injunctive relief to prevent any breach or threatened breach of
this Section 9, and to specific performance of each of the terms of such Section
in addition to any other legal or equitable remedies that the Corporation may
have. The Executive further agrees that she shall not, in any equity proceeding
relating to the enforcement of the terms of this Section 9, raise the defense
that the Corporation has an adequate remedy at law.
9.3 SPECIAL SEVERABILITY. The terms and provisions of this Section 9
are intended to be separate and divisible provisions and if, for any reason, any
one or more of them is held to be invalid or unenforceable, neither the validity
nor the enforceability of any other provision of this Agreement shall thereby be
affected.
10. SUCCESSORS.
10.1 THE EXECUTIVE. This Agreement is personal to the Executive and,
without the prior express written consent of the Corporation, shall not be
assignable by the Executive, except that the Executive's rights to receive any
compensation or benefits under this Agreement may be transferred or disposed of
pursuant to testamentary disposition, intestate succession or pursuant to a
qualified domestic relations order. This Agreement shall inure to the benefit of
and be enforceable by the Executive's heirs, beneficiaries and/or legal
representatives.
10.2 THE CORPORATION. This Agreement shall inure to the benefit of
and be binding upon the Corporation and its successors and assigns; provided,
however, that no assignment of this Agreement may be made without the written
consent of the Executive.
11. INDEMNIFICATION. The Executive (and her heirs, executors and
administrators) shall be indemnified and held harmless by the Corporation to the
fullest extent permitted by applicable law, regulation, regulatory bulletin,
and/or any other regulatory requirement, as the same exists or may hereafter be
promulgated or amended, against all expense, liability and loss (including,
without limitation, attorneys' fees, judgments, fines, excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
the Executive as a consequence of the Executive being or having been made a
party to, or being or having been involved, in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that the Executive is or was a trustee,
director or officer of the Corporation or is or was serving at the request of
the Corporation as a trustee, director or officer of another corporation
(including, but not limited to, a subsidiary or an Affiliate of the
Corporation), and such indemnification shall continue after the Executive shall
cease to be an officer, director or trustee. The right to indemnification
conferred hereby shall be a contract right and shall also include, to the extent
permitted by applicable regulation, the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of the final
disposition upon receipt by the Corporation of an undertaking by or on behalf of
the Executive to repay such amount or a portion thereof, if it shall ultimately
be determined that the
Executive is not entitled to be indemnified by the Corporation pursuant hereto
or as otherwise authorized by law but such repayment by the Executive shall only
be in an amount ultimately determined to exceed the amount to which the
Executive was entitled to be indemnified.
12. MISCELLANEOUS.
12.1 APPLICABLE LAW. This Agreement shall, to the extent not
superseded by federal law, be governed by and construed in accordance with the
laws of the State of New York, without regard to principles of conflict of laws.
12.2 AMENDMENTS/WAIVER. This Agreement may not be amended, waived,
or modified otherwise than by a written agreement executed by the parties to
this Agreement or their respective successors and legal representatives. No
waiver by any party to this Agreement of any breach of any term, provision or
condition of this Agreement by the other party shall be deemed a waiver of a
similar or dissimilar condition or provision at the same time, or any prior or
subsequent time.
12.3 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given when received by hand-delivery to the
other party, by facsimile transmission, by overnight courier, or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive: Ms. Karen M. Cullen
20 East Ninth Street
New York, New York 10003
with a copy to: Mel M. Immergut, Esq.
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
If to the Corporation: Long Island Bancorp. Inc.
201 Old Country Road
Melville, New York 11747
Attn: Corporate Secretary
with a copy to: Mel M. Immergut, Esq.
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
12.4 WITHHOLDING. The Corporation may withhold from any amounts
payable under this Agreement such taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
12.5 SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
12.6 CAPTIONS. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
12.7 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties to this Agreement concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect thereto.
12.8 Representation. The Executive represents and warrants that the
performance of the Executive's duties and obligations under this Agreement will
not violate any agreement between the Executive and any other person, firm,
partnership, corporation, or organization.
12.9 SURVIVORSHIP. The respective rights and obligations of the
parties to this Agreement, including, without limitation, any rights of the
Executive and the Corporation under Section 11 of this Agreement, shall survive
any termination of this Agreement or the Executive's employment hereunder for
any reason to the extent necessary to the intended preservation of such rights
and obligations.
12.10 EFFECT OF PAYMENTS UNDER BANK AGREEMENT. Notwithstanding any
provision herein to the contrary, to the extent that payments, entitlements and
benefits are paid to or received by the Executive under the Employment Agreement
dated as of August 4, 1997, between the Executive and the Bank, the amount of
any such payments, entitlements and benefits actually made by the Bank shall
reduce, to the extent so made,
the same payment, entitlement or benefit due to the Executive under the
provisions of this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and the Corporation has caused this Agreement to be executed in its name on
its behalf, and its corporate seal to be hereunto affixed and attested by its
Secretary, all as of the day and year first above written.
LONG ISLAND BANCORP, INC.
By: _____________________________
Name:
Title:
---------------------------------
Karen M. Cullen