EXHIBIT 10.11(B)
AMENDATORY AGREEMENT
This AMENDATORY AGREEMENT ("Agreement") is made effective as of October 17,
1997 by and between MSB BANCORP, INC. ("Holding Company"), a corporation
organized under the laws of Delaware, with its principal administrative office
at 00 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx, and XXXXXXX X. XXXXX ("Executive"). Any
reference to "Savings Bank" herein shall mean MSB Bank, a wholly owned
subsidiary of the Holding Company, or any successor thereto.
W I T N E S S E T H :
WHEREAS, the Holding Company and the Executive entered into an employment
agreement dated September 3, 1994 ("Employment Agreement"), which was amended
effective as of September 3, 1995 and September 3, 1996; and
WHEREAS, the Holding Company and Executive desire to amend the Employment
Agreement, effective as of October 17, 1997;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
FIRST. Section 2(a) of the Employment Agreement shall be amended in its
entirety to read as follows:
(a) The period of Executive's employment under this Agreement ("Employment
Period") shall be deemed to have commenced as of the date first above written
and shall end on December 31, 2002, subject to such extensions, if any, as are
provided by the Holding Company pursuant to Section 2(b).
SECOND. Section 2(b) of the Employment Agreement shall be amended in its
entirety to read as follows:
(b) Beginning on January 1, 1998, the Employment Period shall be
automatically extended for one (1) additional day each day, unless either
Executive or the Holding Company elects not to extend the Employment Period
further by giving written notice to the other party, in which case the
Employment Period shall be fixed and shall end on the later of the last day of
the Employment Period specified in such notice or the fifth anniversary of the
date such written notice is given.
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THIRD. Section 5(b) of the Employment Agreement shall be amended in its
entirety to read as follows:
(b) If any of the events described in Section 5(a)
constituting a Change in Control have occurred or the Board has
determined that a Change in Control has occurred, Executive shall
be entitled to the payments and benefits provided in paragraphs
(c), (d), (e), (f), (g) and (h) of this Section 5 on the date
such Change in Control occurs, without regard to whether
Executive's employment with the Holding Company or the Savings
Bank terminates in connection with such Change in Control. The
benefits to be provided under, and the amounts payable pursuant
to, this Section 5 shall be provided and be payable to the
Executive, or in the event of his subsequent death, to his
beneficiary or beneficiaries, or to his estate, as the case may
be, without regard to proof of damages and without regard to the
Executive's efforts, if any, to mitigate damages, and shall not
be offset by, or reduced in respect of, any compensation or
benefits paid or provided, or to be paid or provided, to
Executive as a continuing employee of the Holding Company, the
Savings Bank or their successors or assigns, following the Change
in Control. The Holding Company and Executive hereby stipulate
that the damages which may be incurred by Executive following any
Change in Control are not capable of accurate measurement as of
the date first above written and that such liquidated damages
constitute reasonable damages under the circumstances.
FOURTH. Section 5(c) of the Employment Agreement shall be amended in its
entirety to read as follows:
(c) Upon the occurrence of a Change in Control, the Holding
Company shall be obligated to pay (or to cause the Savings Bank
to pay) Executive, or in the event of his subsequent death, his
beneficiary or beneficiaries, or his estate, as the case may be,
as severance pay or liquidated damages, or both, a sum equal to
the following: (i) the amount of Base Salary, bonuses and any
other cash compensation that would have been paid to Executive
during the remaining Employment Period (including, but not
limited to, any compensation paid to Executive as a member of the
Board of Directors of the Holding Company); (ii) the amount of
any employer contributions that would have been made on
Executive's behalf under the Savings Bank's 401(k) Savings Plan
(and any other defined contribution plan maintained by the
Holding Company or the Savings Bank) during the remaining
Employment Period; (iii) the fair market value (determined as of
the date of the Change in Control) of any stock that would have
been awarded or allocated to Executive under the Savings Bank's
ESOP or BRP (or any other stock-based employee benefit or
compensation plan or arrangement maintained by the Holding
Company or the Savings Bank) during the remaining Employment
Period; (iv) the lump sum present value of the benefits which the
Executive would have accrued under the Savings Bank's Retirement
Plan (and any other defined benefit plan maintained by the
Holding Company or the Savings Bank) during the remaining
Employment
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Period; and (v) the lump sum present value of the additional benefits which
Executive would have accrued under Section 3(d) of this Agreement during the
remaining Employment Period. The amounts specified in the preceding sentence
shall be determined based on the terms of the applicable plan or plans
(including the actuarial assumptions used therein) as in effect on the date of
the Change in Control, assuming that, during the remaining Employment Period,
Executive continued to receive his Base Salary at the level in effect on the
date of the Change in Control, earned the highest level of bonuses in effect for
him prior to the Change in Control and made the maximum amount of employee
contributions permitted or required under the applicable plan or plans. At the
election of the Executive, which election is to be made within thirty (30) days
of the date of the Change in Control, the sum of the amounts to be paid under
this Section 5(c) shall be paid in a lump sum or paid in equal monthly
installments during the remaining Employment Period. In the event that no
election is made, payment to the Executive will be made on a monthly basis
during the remaining Employment Period.
FIFTH. Section 5(d) of the Employment Agreement shall be amended in its
entirety to read as follows:
(d) Upon the occurrence of a Change in Control, the Holding
Company will cause to be continued, during the remaining
Employment Period, life, medical, dental and disability coverage
substantially identical to the coverage maintained by the Savings
Bank or the Holding Company for Executive and his family
immediately prior to the Change in Control.
SIXTH. Section 5(g) of the Employment Agreement shall be redesignated
Section 5(h), and any cross-references thereto shall be modified accordingly,
and a new Section 5(g) shall be added to the Employment Agreement to read as
follows:
(g) Upon the occurrence of a Change in Control, the Holding
Company will cause to cause to be continued, during the remaining
Employment Period, at no cost to Executive, the fringe benefits
and perquisites made available or provided to Executive
immediately prior to the Change in Control, including, but not
limited to, use of an automobile (comparable to a Lincoln
Continental or a better quality and including gasoline), cellular
and automobile telephones and a pager, as provided to Executive
by the Holding Company or the Savings Bank immediately prior to
the Change in Control, and payment of all membership fees, dues,
capital contributions and other expenses for membership in such
clubs, associations or other organizations for which expenses
were paid by the Holding Company or the Savings Bank on behalf of
the Executive prior to the Change in Control, including, but not
limited to, any fees associated with attending state and national
annual bank conventions and the American Community Bankers
Presidents' Seminar. Regardless of whether Executive remains
employed by the Holding Company or
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the Savings Bank, or their successors or assigns, he shall be
provided, during the remaining Employment Period, with a private
office comparable in size with his office prior to the Change in
Control which shall not be more than 30 miles from the location
of his principal place of employment immediately prior to the
Change in Control, a corporate credit card, the right to receive
frequent flyer miles for any business travel, a private telephone
number, secretarial services and other support services and
facilities comparable to those provided to him by the Holding
Company and the Savings Bank immediately prior to the Change in
Control. In the event that Executive remains employed by the
Holding Company or the Savings Bank, or their successors or
assigns, following the Change in Control, Executive's principal
place of employment shall be the office described in the
preceding sentence.
SEVENTH. Except as expressly amended herein, the Employment Agreement shall
remain in full force and effect and the definitions therein are incorporated in
this Amendatory Agreement by reference.
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IN WITNESS WHEREOF, MSB BANCORP, INC. has caused this Agreement to be
executed and its seal to be affixed hereunto by its duly authorized officer and
director, and Executive has signed this Agreement, on the 31st day of October,
1997.
ATTEST: MSB BANCORP, INC.
/s/ Xxxxx XxXxxx By: /s/ Xxxxx X. Xxxxxx
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SECRETARY XXXXX X. XXXXXX
XXXXX XXXXXX CHAIRMAN OF THE COMPENSATION COMMITTEE
[SEAL]
WITNESS:
/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
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