1
CONSULTING AGREEMENT
CONSULTING AGREEMENT (this "Agreement"), dated as of March 27, 1998 by and
between North Fork Bancorporation, Inc. (the "Company") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
III (the "Consultant").
WHEREAS, the Company and New York Bancorp Inc. ("NY Bancorp") have
entered into an Amended and Restated Agreement and Plan of Merger (the "Merger
Agreement"), dated as of October 7, 1997, pursuant to which, among other
things, NY Bancorp will be merged with and into the Company as of the Effective
Time (as defined in the Merger Agreement);
WHEREAS, in connection with the transactions contemplated by the Merger
Agreement and in recognition of the Consultant's experience and abilities, the
Company desires to assure itself of the services of the Consultant in
accordance with and subject to the terms and conditions provided herein; and
WHEREAS, the Consultant wishes to perform services for the Company in
accordance with and subject to the terms and conditions provided herein.
NOW, THEREFORE, in consideration of the mutual premises and the respective
covenants and agreements of the parties herein contained, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Engagement as Consultant. The Company hereby agrees to engage the
Consultant, and the Consultant hereby agrees to perform services for the
Company, on the terms and conditions set forth herein.
2. Term. The term of this Agreement (the "Term") shall commence on the
Effective Time and terminate on the first anniversary thereof. This Agreement
shall be of no force and effect unless and until the Effective Time occurs.
3. Duties. During the Term, the Consultant shall perform such services
relating to the business of the Company and its subsidiaries as the Consultant
and the Chief Executive Officer or Board of Directors of the Company shall
mutually agree, such services to be consistent with the Consultant's expertise
in
2
asset/liability management. The Consultant shall expend such time and effort as
he reasonably believes to be necessary to perform his services on behalf of the
Company, and in no event shall he be required to provide consulting services to
the Company for more than 20 hours during any week. The scheduling of such time
shall be mutually agreeable to the Consultant and the Company. The Consultant
may pursue other personal or business interests during the Term, provided,
however, that such interests do not interfere with his duties as set forth in
this Section 3 and do not violate his obligations under Section 8 hereof.
4. Place of Performance. The Consultant shall perform his duties and
conduct his business from his primary residence and/or at such other locations
as are reasonably acceptable to him and the Company. The Consultant shall not
be required to travel outside of the New York metropolitan area in the
performance of his services hereunder.
5. Independent Contractor. During the term of this Agreement, the
Consultant shall be an independent contractor and not an employee of the
Company. Accordingly, Consultant shall be responsible for payment of all taxes,
including Federal and State income tax, Social Security tax, Unemployment
Insurance tax, and any other taxes or business license fees as required.
6. Compensation and Related Matters.
(a) Monthly Consulting Fee. During the Term, the Company shall pay
to the Consultant, in equal monthly installments, an annual consulting fee of
$750,000.
(b) Benefits: Perquisites. As of the Effective Time, the Consultant
may elect on behalf of himself and his qualified beneficiaries, continuation of
health coverage in accordance with Section 4980B of the Internal Revenue Code
of 1986 and Part 6 of Subtitle B of Title I of the Employee Retirement Income
Security Act of 1974, as amended ("COBRA Coverage"). During the Term, the
Company shall reimburse the Consultant for premiums actually paid by the
Consultant for such COBRA Coverage.
(c) Reimbursement of Expenses. The Company shall promptly reimburse
the Consultant for all reasonable business expenses incurred in connection with
the services performed by him on behalf of the Company, subject to
documentation in accordance with the Company's policies.
2
3
7. Termination. The Consultant's engagement as a consultant hereunder
shall terminate without further action by any party hereto upon the expiration
of the Term or upon the Consultant's death or permanent disability (as defined
in the Company's long term disability plan). This Agreement may also be
terminated (i) by the Consultant upon 30 days' written notice to the Company
(such notice may be waived by mutual consent of the parties) or (ii) by the
Company upon a material breach by the Consultant of this Agreement (including,
without limitation, any breach of Sections 8 or 9 hereof). The Company shall
not have the right to terminate this Agreement pursuant to clause (ii) of the
preceding sentence unless the Company shall have first provided written notice
to the Consultant specifying the details of any claimed material breach and the
Consultant shall have failed to cure such breach within 30 days after receiving
written notice thereto. Upon termination of the Consultant's engagement as a
consultant hereunder in accordance with the immediately preceding sentence or
as a result of death or permanent disability, the parties hereto shall have no
further obligation or liability under this Agreement, except that the Company
shall pay the Consultant all amounts owed the Consultant hereunder in respect
of the period prior to the date of termination.
8. Noncompetition. The Consultant shall not engage in any Competitive
Activity during the Term. For the purposes hereof, a "Competitive Activity"
shall mean the Consultant's direct or indirect participation in the
ownership, management, operation or control of, or employment, as an officer,
employee, partner or otherwise, with any business which is in competition with
the business conducted by the Company and its affiliates in any geographic area
where such business is being conducted. Notwithstanding the foregoing, nothing
contained in this Section 8 shall prohibit the Consultant from acquiring
beneficial ownership of up to 5% of the outstanding voting securities of any
publicly-traded depository institution (or publicly-traded holding company
thereof) any of the securities of which are registered pursuant to Section 12
of the Securities and Exchange Act of 1934, as amended (any such acquisition, a
"Permitted Investment"); provided, however, that the Consultant shall not,
without the Company's prior consent, make a Permitted Investment in any such
depository institution or holding company if both (i) the market capitalization
of such depository institution or holding company was $10 billion or less at
any time during the twelve-month period immediately preceding the proposed
investment by the Consultant, and (ii) such depository institution or holding
company is headquartered, or its business is otherwise principally located, in
New York, New Jersey or Connecticut. Contemporaneously with the execution of
this Agreement, the Consultant will deliver to the Company a schedule
indicating, as of this date of this Agreement, the amount and nature of the
Consultant's beneficial
3
4
ownership of voting securities of any financial institution having a market
capitalization of $10 billion or less.
9. Compliance with Law and Company Policy. In the performance of the
services herein contemplated, the Consultant is an independent contractor with
the authority to control the details of his work. However, the services of the
Consultant are subject to the approval of the Company and shall be subject to
the Company's general right of supervision to secure the satisfactory
performance thereof. The Consultant agrees to comply with all federal, state
and municipal laws, rules and regulations, as well as all policies and
procedures of the Company, that are now or may in the future become applicable
to the Consultant in connection with his services to the Company. At all times
during or after the Term, the Consultant shall hold in a fiduciary capacity for
the benefit of the Company all secret or confidential information, knowledge or
data relating to the Company or any of its affiliates, and shall not in any
manner, directly or indirectly, use for his own benefit or the benefit of any
other person, firm, entity or corporation, nor disclose, divulge, render or
offer, any such secret or confidential information, except on behalf of the
Company in the course of the proper performance of the Consultant's duties or
except as may otherwise be required by law or legal process (provided the
Company, to the extent reasonably practicable, has been given notice and
opportunity to challenge or limit the scope of disclosure purportedly so
required). Confidential information shall not include, for purposes of this
Section 9, any information which is generally available to the public other
than as a result of a prohibited disclosure by the Consultant or any
information in the possession of the Consultant which has been independently
developed by him or made available to him by a third party with no obligation
of confidentiality to the Company. At all times during or after the Term, the
Consultant shall refrain from making disparaging remarks about the Company and
its officers, directors or employees.
10. Indemnification. The Company agrees that the Consultant shall be
entitled to indemnification, with respect to all cost, expense, liability and
loss incurred by the Consultant and resulting from the provision of services by
the Consultant in accordance herewith, as and to the same extent that the
Company's directors and officers are entitled to indemnification pursuant to
the Company's certificate of incorporation and by-laws.
4
5
11. Successors: Binding Agreement.
(a) The Company shall require any successor to all or substantially
all of the business or assets of the Company to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
(b) This Agreement and all rights of the Consultant hereunder shall
inure to the benefit of and be enforceable by the Consultant's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. This Agreement is personal to and may not
be assigned by the Consultant.
(c) On and after the Effective Time, this Agreement shall supercede
any other agreement between the parties hereto or between NY Bancorp and the
Consultant with respect to the subject matter hereof.
12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (which is
confirmed) or sent by an overnight courier service to the parties at the
following addresses (or at such other addresses for a party as shall be
specified by the notice):
If to the Company: North Fork Bancorporation, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
If to the Consultant: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
c/o Malloy Enterprises, Inc.
Bay Street at the Waterfront
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
13. Specific Performance. Whereas the Company's remedy at law for any
breach of Sections 8 or 9 of this Agreement would be inadequate, the Company
shall be entitled to injunctive relief and to enforce its rights thereunder by
an action for specific performance in case of any such breach.
5
6
14. Disputes. Except as otherwise provided in Section 13 hereof, any
dispute, controversy or claim arising out of or relating to this Agreement, or
the breach, termination or validity hereof, shall be finally settled by
arbitration by one arbitrator in New York City, New York pursuant to the
Commercial Arbitration Rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court of
competent jurisdiction.
15. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the parties hereto. No waiver by a party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter
hereof have been made by the parties which are not set forth expressly in this
Agreement. This Agreement shall be governed and construed in accordance with
the laws of the State of New York, without giving effect to the principles of
conflicts of law thereunder.
16. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but both of which together shall
constitute one and the same instrument.
17. Enforcement. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
18. Survival. The obligations of the parties set forth in Section 9 shall
survive any termination or expiration of the Consultant's engagement as a
consultant hereunder or of this Agreement as necessary to give full effect to
the provisions of such Section.
6
7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
NORTH FORK BANCORPORATION, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
7
