INVESTORS BANCORP, INC.
AMENED AND RESTATED
EMPLOYMENT AGREEMENT
FOR
XXXX XXXXXXXXX
This Amended and Restated Employment Agreement is effective as of the 29th
day of March, 2010, by and between Investors Bancorp, Inc., a Delaware
corporation (the "Company"), which is the holding company for Investors Savings
Bank (the "Bank"), and Xxxx Xxxxxxxxx ("Executive").
WHEREAS, the Company and the Executive originally entered into an
employment agreement dated August 18, 2008 (the "Prior Agreement"); and
WHEREAS, the Company and the Executive wish to replace the Prior Agreement
with this Agreement, which provides for a 3-year term.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and conditions hereinafter set forth, the Company and Executive hereby agree as
follows:
1. POSITION AND RESPONSIBILITIES
During the period of his employment hereunder, Executive agrees to serve as
Executive Vice President of Retail Banking of the Bank. During said period,
Executive also agrees to serve, if elected, as an officer and director of any
subsidiary or affiliate of the Company. Failure to reelect or reappoint
Executive as Executive Vice President of Retail Banking without the consent of
Executive during the term of this Agreement shall constitute a breach of this
Agreement.
2. TERMS AND DUTIES
(a) The period of Executive's employment under this Agreement shall begin
as of the date first above written and shall continue for thirty-six (36) full
calendar months thereafter. Commencing on December 31, 2010, and continuing on
December 31st of each year thereafter (the "Anniversary Date"), this Agreement
shall renew for an additional year such that the remaining term shall be three
(3) years unless written notice of non-renewal ("Non-Renewal Notice") is
provided to Executive at least thirty (30) days and not more than sixty (60)
days prior to any such Anniversary Date, that this Agreement shall terminate at
the end of thirty-six (36) months following such Anniversary Date. Prior to each
notice period for non-renewal, the disinterested members of the Board of
Directors of the Company ("Board") will conduct a comprehensive performance
evaluation and review of Executive for purposes of determining whether to extend
the Agreement, and the results thereof shall be included in the minutes of the
Board's meeting.
(b) During the period of his employment hereunder, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall faithfully perform his duties hereunder
including activities and services related to the organization, operation and
management of the Company.
3. COMPENSATION AND REIMBURSEMENT
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Section 2(b). In
consideration of the services to be rendered by Executive hereunder, the Company
and/or the Bank shall pay Executive as compensation a salary of not less than
Three Hundred Thousand Dollars ($300,000.00) per year ("Base Salary"). Such Base
Salary shall be payable bi-weekly, or in accordance with the Company's normal
payroll practices. During the period of this Agreement, Executive's Base Salary
shall be reviewed at least annually; the first such review will be made no later
than December 31, 2010. Any change in Executive's Base Salary shall be effective
from the first day of the next calendar year. Such review shall be conducted by
a Committee designated by the Board of Directors of the Company and the Board of
Directors of the Bank (collectively the "Boards"), and the Boards may increase,
but not decrease, Executive's Base Salary (any increase in Base Salary shall
become the "Base Salary" for purposes of this Agreement).
(b) The Company and/or the Bank will provide Executive with employee
benefit plans, arrangements and perquisites substantially equivalent to those in
which Executive was participating or otherwise deriving benefit from immediately
prior to the beginning of the term of this Agreement, and the Company and/or the
Bank will not, without Executive's prior written consent, make any changes in
such plans, arrangements or perquisites which would adversely affect Executive's
rights or benefits thereunder. Without limiting the generality of the foregoing
provisions of this Section 3(b), Executive will be entitled to participate in or
receive benefits under any employee benefit plans including but not limited to,
retirement plans, supplemental retirement plans, pension plans, profit-sharing
plans, health-and-accident plans, medical coverage or any other employee benefit
plan or arrangement made available by the Company and/or the Bank in the future
to its senior executives and key management employees, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements. Executive will be entitled to incentive compensation and
bonuses as provided in any plan of the Company and/or the Bank in which
Executive is eligible to participate (and he shall be entitled to a pro rata
distribution under any incentive compensation or bonus plan as to any year in
which a termination of employment occurs, other than termination for Just
Cause). Nothing paid to Executive under any such plan or arrangement will be
deemed to be in lieu of other compensation to which Executive is entitled under
this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of this
Section 3, the Company and/or the Bank shall pay or reimburse Executive for all
reasonable travel and other reasonable expenses incurred by Executive in
performing his obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board may from time to time
determine.
4. OUTSIDE ACTIVITIES
Executive may serve as a member of the board of directors of business,
community and charitable organizations subject to the approval of the Board,
provided that in each case such service shall not materially interfere with the
performance of his duties under this Agreement or present any conflict of
interest. Such service to and participation in outside organizations shall be
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presumed for these purposes to be for the benefit of the Company, and the
Company shall reimburse Executive his reasonable expenses associated therewith.
5. WORKING FACILITIES AND EXPENSES
Executive's principal place of employment shall be the Company's principal
executive offices. The Company shall provide Executive, at his principal place
of employment, with a private office, support services and facilities suitable
to his position with the Company and necessary or appropriate in connection with
the performance of his duties under this Agreement. The Company and/or its
subsidiaries shall provide Executive with an automobile suitable to the position
of Executive Vice President of Retail Banking, and such automobile may be used
by Executive in carrying out his duties under this Agreement and for his
personal use such as commuting between his residence and his principal place of
employment. The Company shall reimburse Executive for the cost of maintenance,
use and servicing of such automobile. The Company shall reimburse Executive for
his ordinary and necessary business expenses incurred in connection with the
performance of his duties under this Agreement, including, without limitation,
fees for memberships in such clubs and organizations that Executive and the
Board mutually agree are necessary and appropriate to further the business of
the Company, and travel and reasonable entertainment expenses. Reimbursement of
such expenses shall be made upon presentation to the Company of an itemized
account of the expenses in such form as the Company may reasonably require.
6. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
(a) The provisions of this Section 6 shall apply upon the occurrence of an
Event of Termination (as herein defined) during Executive's term of employment
under this Agreement. As used in this Agreement, an "Event of Termination" shall
mean and include any one or more of the following:
(i) the involuntary termination by the Company or the Bank of
Executive's full-time employment hereunder for any reason other
than (A) Disability or Retirement (as defined in Section 7
below), or (B) termination for Just Cause as defined in Section
8 hereof, provided that such termination of employment
constitutes a "Separation from Service" within the meaning of
Code Section 409A and the Treasury Regulations thereunder; or
(ii) Executive's resignation from the Bank's employ, upon any
(A) failure to elect or reelect or to appoint or reappoint
Executive as Executive Vice President of Retail Banking, or
a material change in Executive's function, duties, or
responsibilities, which change would cause Executive's
position to become one of lesser responsibility,
importance, or scope from the position and attributes
thereof described in Section 1, above,
(B) liquidation or dissolution of the Company or the Bank other
than liquidations or dissolutions that are caused by
reorganizations that do not affect the status of Executive,
or
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(C) material breach of this Agreement by the Company.
Upon the occurrence of any event described in clauses (ii) (A), (B) or (C)
above, Executive shall have the right to elect to terminate his employment under
this Agreement by resignation upon thirty (30) days prior written notice given
within a reasonable period of time not to exceed ninety (90) days after the
initial event giving rise to said right to elect. The Company shall have thirty
(30) days to cure the conditions giving rise to the Event of Termination,
provided that the Bank may elect to waive such 30 day period. Notwithstanding
the preceding sentence, in the event of a continuing breach of this Agreement by
the Company, Executive, after giving due notice within the prescribed time frame
of an initial event specified above, shall not waive any of his rights solely
under this Agreement and this Section by virtue of the fact that Executive has
submitted his resignation but has remained in the employment of the Company and
is engaged in good faith discussions to resolve any occurrence of an event
described in clauses (A), (B) or (C) above.
(iii) Executive's involuntary termination by the Company or the Bank
or voluntary resignation from the Bank's employ on the effective
date of, or at any time following, a Change in Control during
the term of this Agreement. For these purposes, a Change in
Control of the Company or the Bank shall mean a change in
control of a nature that: (i) would be required to be reported
in response to Item 5.01 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 0000 (xxx "Xxxxxxxx Xxx"); or
(ii) results in a Change in Control of the Bank or the Company
within the meaning of the Bank Holding Company Act, as amended,
and applicable rules and regulations promulgated thereunder
(collectively, the "BHCA") as in effect at the time of the
Change in Control; or (iii) without limitation such a Change in
Control shall be deemed to have occurred at such time as (a) any
"person" (as the term is used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company representing 25% or more of the
combined voting power of Company's outstanding securities,
except for any securities purchased by the Bank's employee stock
ownership plan or trust; or (b) individuals who constitute the
Board on the date hereof (the "Incumbent Board") cease for any
reason to constitute at least a majority thereof, provided that
any person becoming a director subsequent to the date hereof
whose election was approved by a vote of at least three-quarters
of the directors comprising the Incumbent Board, or whose
nomination for election by the Company's stockholders was
approved by the same Nominating Committee serving under an
Incumbent Board, shall be, for purposes of this clause (b),
considered as though he were a member of the Incumbent Board; or
(c) a plan of reorganization, merger, consolidation, sale of all
or substantially all the assets of the Bank or the Company or
similar transaction in which the Bank or Company is not the
surviving institution occurs or is implemented; or (d) a proxy
statement soliciting proxies from stockholders of the Company is
distributed, by someone other than the current management of the
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Company, seeking stockholder approval of a plan of
reorganization, merger or consolidation of the Company or
similar transaction with one or more corporations as a result of
which the outstanding shares of the class of securities then
subject to the plan are exchanged for or converted into cash or
property or securities not issued by the Company; or (e) a
tender offer is made for 25% or more of the voting securities of
the Company and the shareholders owning beneficially or of
record 25% or more of the outstanding securities of the Company
have tendered or offered to sell their shares pursuant to such
tender offer and such tendered shares have been accepted by the
tender offeror. Notwithstanding anything in this subsection to
the contrary, a Change in Control shall not be deemed to have
occurred upon the conversion of the Company's mutual holding
company parent to stock form, or in connection with any
reorganization used to effect such a conversion.
(b) Upon the occurrence of an Event of Termination, on the Date of
Termination, as defined in Section 9(b), the Company and/or its subsidiaries
shall pay Executive, or, in the event of his subsequent death, his beneficiary
or beneficiaries, or his estate, as the case may be, as severance pay or
liquidated damages, or both, a sum equal to three (3) times the sum of (i)
Executive's Base Salary and (ii) the highest rate of bonus awarded to Executive
during the prior three years.
(c) Upon the occurrence of an Event of Termination, the Company and/or its
subsidiaries will cause to be continued, at Company's sole expense, life
insurance, and nontaxable medical, dental and disability insurance coverage
substantially identical to the coverage maintained by the Company and/or the
Bank for Executive prior to his termination. Such coverage or payment shall
continue for thirty-six (36) months from the Date of Termination.
(d) Upon the occurrence of any Event of Termination, the Company and/or its
subsidiaries shall pay the Executive within sixty (60) days a lump sum payment
in an amount equal to the excess, if any, of: (A) the present value of the
benefits to which he would be entitled under the Company and/or the Bank's
defined benefit pension plan (and any other defined benefit plan maintained by
the Company and/or the Bank) if he had the additional years of service that he
would have had if he had continued working for the Company for a thirty-six (36)
month period following his termination earning the salary that would have been
paid during the remaining unexpired term of this Agreement (assuming, if a
Change in Control as defined in Section 4(a)(iii) has occurred, that the annual
Base Salary under Section 3(a) continues for the remaining unexpired term of
this Agreement), determined as if each such plan had continued in effect without
change in accordance with its terms as of the day prior to his actual date of
his termination and as if such benefits were payable beginning on the first day
of the month coincident with or next following his actual date of his
termination, over (B) the present value of the benefits to which he is actually
entitled under the Company and/or the Bank's defined benefit pension plan (and
any other defined benefit plan maintained by the Company and/or the Bank) as of
the date of his termination, where such present values are to be determined
using a discount rate of 6% and the mortality tables prescribed under Code
Section 72.
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(e) For purposes of this Agreement, a "Separation from Service" shall have
occurred if the Bank and Executive reasonably anticipate that no further
services will be performed by the Executive after the date of the Event of
Termination (whether as an employee or as an independent contractor) or the
level of further services performed will not exceed 49% of the average level of
bona fide services in the 12 months immediately preceding the Event of
Termination. For all purposes hereunder, the definition of "Separation from
Service" shall be interpreted consistent with Treasury Regulation Section
1.409A-1(h)(ii). If Executive is a Specified Employee, as defined in Code
Section 409A and any payment to be made under subparagraph (b) or (d) of this
Section 6 shall be determined to be subject to Code Section 409A, then if
required by Code Section 409A, such payment or a portion of such payment (to the
minimum extent possible taking into consideration Treasury Regulation Section
1.409A-1(b)(9)(iii)) shall be delayed and shall be paid on the first day of the
seventh month following Executive's Separation from Service.
(f) Notwithstanding the preceding paragraphs of this Section, in the event
that the aggregate payments or benefits to be made or afforded to Executive
under said paragraphs (the "Termination Benefits") would be deemed to include an
"excess parachute payment" under Section 280G of the Code or any successor
thereto, then such Termination Benefits will be reduced to an amount, the value
of which is one dollar ($1.00) less than an amount equal to the total amount of
payments permissible under Section 280G of the Code or any successor thereto.
7. TERMINATION UPON RETIREMENT, DISABILITY OR DEATH
(a) For purposes of this Agreement, termination by the Company or the Bank
of Executive's employment based on "Retirement" shall mean termination of
Executive's employment by the Company or the Bank upon attainment of age 65, or
such later date as determined to by the Board of Directors of the Company or the
Bank, as applicable. Upon termination of Executive's employment upon Retirement,
Executive shall be entitled to all benefits under any retirement plan of the
Company or the Bank and other plans to which Executive is a party but shall not
be entitled to the Termination Benefits specified in Section 6(b) through (d)
hereof.
(b) Termination of Executive's employment based on "Disability" shall be
construed to comply with Code Section 409A and shall be deemed to have occurred
if: (i) Executive is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can be
expected to result in death, or last for a continuous period of not less than 12
months; (ii) by reason of any medically determinable physical or mental
impairment that can be expected to result in death, or last for a continuous
period of not less than 12 months, Executive is receiving income replacement
benefits for a period of not less than three months under an accident and health
plan covering employees of the Bank or the Company; or (iii) Executive is
determined to be totally disabled by the Social Security Administration. In the
event of Executive's Disability, the Company may terminate this Agreement,
provided that the Company shall continue to be obligated to pay Executive his
Base Salary for the remaining term of the Agreement, or one year, whichever is
the longer period of time, and provided further that any amounts actually paid
to Executive pursuant to any disability insurance or other similar such program
which the Company has provided or may provide on behalf of its employees or
pursuant to any xxxxxxx'x or social security disability program shall reduce the
compensation to be paid to Executive pursuant to this paragraph. Disability
payments hereunder shall commence within thirty (30) days of the Disability
determination.
(c) In the event of Executive's death during the term of the Agreement, his
estate, legal representatives or named beneficiaries (as directed by Executive
in writing) shall be paid Executive's Base Salary as defined in Paragraph 3(a)
at the rate in effect at the time Executive's death for a period of one (1) year
from the date of Executive's death, and the Company or the Bank will continue to
provide medical and dental coverage for Executive's family for one (1) year
after Executive's death.
8. TERMINATION FOR JUST CAUSE
In the event that employment hereunder is terminated by the Company for
Just Cause, the Executive shall not be entitled to receive compensation or other
benefits for any period after such termination, except as provided by law. The
phrase "Just Cause" as used herein, shall exist when there has been a good faith
determination by the Board that there shall have occurred one or more of the
following events with respect to the Executive: (i) the conviction of the
Executive of a felony or of any lesser criminal offense involving moral
turpitude; (ii) the willful commission by the Executive of a criminal or other
act that, in the judgment of the Board will likely cause substantial economic
damage to the Company or the Bank or substantial injury to the business
reputation of the Company or Bank; (iii) the commission by the Executive of an
act of fraud in the performance of his duties on behalf of the Company or Bank;
(iv) the continuing willful failure of the Executive to perform his duties to
the Company or Bank (other than any such failure resulting from the Executive's
incapacity due to physical or mental illness) after written notice thereof
(specifying the particulars thereof in reasonable detail) and a reasonable
opportunity to be heard and cure such failure are given to the Executive by the
Board; or (v) an order of a federal or state regulatory agency or a court of
competent jurisdiction requiring the termination of the Executive's employment
by the Company. Executive shall not have the right to receive compensation or
other benefits for any period after Termination for Just Cause.Notwithstanding
the foregoing, Just Cause shall not be deemed to exist unless there shall have
been delivered to the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the entire membership of the
Board at a meeting of the Board called and held for the purpose (after
reasonable notice to the Executive and an opportunity for the Executive to be
heard before the Board), finding that in the good faith opinion of the Board the
Executive was guilty of conduct described above and specifying the particulars
thereof. Prior to holding a meeting at which the Board is to make a final
determination whether Just Cause exists, if the Board determines in good faith
at a meeting of the Board, by not less than a majority of its entire membership,
that there is probable cause for it to find that the Executive was guilty of
conduct constituting Just Cause as described above, the Board may suspend the
Executive from his duties hereunder for a reasonable period of time not to
exceed fourteen (14) days pending a further meeting at which the Executive shall
be given the opportunity to be heard before the Board. For purposes of this
subparagraph, no act or failure to act, on the Executive's part shall be
considered "willful" unless done, or omitted to be done, by him not in good
faith without reasonable believe that his action or omission was in the best
interest of the Company and the Bank. Upon a finding of Just Cause, the Board
shall deliver to the Executive a Notice of Termination, as more fully described
in Section 9 below.
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9. NOTICE
(a) Any purported termination by the Company (for these purposes,
termination by the Bank shall be deemed to be termination by the Company) or by
Executive shall be communicated by Notice of Termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
written notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(b) "Date of Termination" shall mean (A) if Executive's employment is
terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that he shall not have returned to the performance of his duties
on a full-time basis during such thirty (30) day period), and (B) if his
employment is terminated for any other reason, the date specified in the Notice
of Termination (which, except in the case of a termination for Just Cause, shall
not be less than thirty (30) days from the date such Notice of Termination is
given). In the event of termination for Just Cause, termination shall be
immediate upon the receipt of a Notice of Termination.
(c) If, within thirty (30) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning the termination, except upon the voluntary termination
by Executive in which case the Date of Termination shall be the date specified
in the Notice, the Date of Termination shall be the date on which the dispute is
finally determined, either by mutual written agreement of the parties, by a
binding arbitration award, or by a final judgment, order or decree of a court of
competent jurisdiction (the time for appeal having expired and no appeal having
been perfected) and provided further that the Date of Termination shall be
extended by a notice of dispute only if such notice is given in good faith and
the party giving such notice pursues the resolution of such dispute with
reasonable diligence. Notwithstanding the pendency of any such dispute, except
in the event of termination for Just Cause, the Bank will continue to pay
Executive his full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, Base Salary) and continue
Executive as a participant in all compensation, benefit and insurance plans in
which he was participating when the notice of dispute was given, until the
dispute is finally resolved in accordance with this Agreement, provided such
dispute is resolved within the term of this Agreement. If such dispute is not
resolved within the term of the Agreement, the Bank shall not be obligated, upon
final resolution of such dispute, to pay Executive compensation and other
payments accruing beyond the term of the Agreement. Amounts paid under this
Section following Notice of Termination shall be offset against or reduce any
other amounts due under this Agreement.
10. POST-TERMINATION OBLIGATIONS
(a) All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with paragraph (b) of this Section during the
term of this Agreement and for one (1) full year after the expiration or
termination hereof.
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(b) Executive shall, upon reasonable notice, furnish such information and
assistance to the Bank as may reasonably be required by the Bank in connection
with any litigation in which it or any of its subsidiaries or affiliates is, or
may become, a party.
11. NON-COMPETITION
(a) Upon any termination of Executive's employment hereunder, other than a
termination (whether voluntary or involuntary) following a Change in Control, as
a result of which the Company is paying Executive benefits under Section 6 of
this Agreement, Executive agrees not to compete with the Bank and/or the Company
for a period of one (1) year following such termination within twenty-five (25)
miles of any existing branch of the Bank or any subsidiary of the Company or
within twenty-five (25) miles of any office for which the Bank, the Company or a
Bank subsidiary of the Company has filed an application for regulatory approval
to establish an office, determined as of the effective date of such termination,
except as agreed to pursuant to a resolution duly adopted by the Board.
Executive agrees that during such period and within said area, cities, towns and
counties, Executive shall not work for or advise, consult or otherwise serve
with, directly or indirectly, any entity whose business materially competes with
the depository, lending or other business activities of the Bank and/or the
Company. The parties hereto, recognizing that irreparable injury will result to
the Bank and/or the Company, its business and property in the event of
Executive's breach of this Subsection 11(a) agree that in the event of any such
breach by Executive, the Bank and/or the Company will be entitled, in addition
to any other remedies and damages available, to an injunction to restrain the
violation hereof by Executive, Executive's partners, agents, servants,
employers, employees and all persons acting for or with Executive. Executive
represents and admits that Executive's experience and capabilities are such that
Executive can obtain employment in a business engaged in other lines and/or of a
different nature than the Bank and/or the Company, and that the enforcement of a
remedy by way of injunction will not prevent Executive from earning a
livelihood. Nothing herein will be construed as prohibiting the Bank and/or the
Company from pursuing any other remedies available to the Bank and/or the
Company for such breach or threatened breach, including the recovery of damages
from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Company and
affiliates thereof, as it may exist from time to time, is a valuable, special
and unique asset of the business of the Company. Executive will not, during or
after the term of his employment, disclose any knowledge of the past, present,
planned or considered business activities of the Company or affiliates thereof
to any person, firm, corporation, or other entity for any reason or purpose
whatsoever (except for such disclosure as may be required to be provided to any
federal banking agency with jurisdiction over the Company or Executive).
Notwithstanding the foregoing, Executive may disclose any knowledge of banking,
financial and/or economic principles, concepts or ideas which are not solely and
exclusively derived from the business plans and activities of the Company, and
Executive may disclose any information regarding the Bank or the Company which
is otherwise publicly available. In the event of a breach or threatened breach
by Executive of the provisions of this Section, the Company will be entitled to
an injunction restraining Executive from disclosing, in whole or in part, the
knowledge of the past, present, planned or considered business activities of the
Company or affiliates thereof, or from rendering any services to any person,
firm, corporation, other entity to whom such knowledge, in whole or in part, has
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been disclosed or is threatened to be disclosed. Nothing herein will be
construed as prohibiting the Company from pursuing any other remedies available
to the Company for such breach or threatened breach, including the recovery of
damages from Executive.
12. SOURCE OF PAYMENTS; NO DUPLICATION OF PAYMENTS
(a) All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Company.
(b) Notwithstanding any provision herein to the contrary, to the extent
that payments and benefits, as provided by this Agreement, are paid to or
received by Executive from the Bank, such compensation payments and benefits
paid by the Bank will be subtracted from any amount due Executive under this
Agreement. Payments pursuant to this Agreement shall be paid by the Company
and/or the Bank and shall be allocated in proportion to the level of activity
and the time expended on such activities by Executive as determined by the
Company and the Bank on a quarterly basis.
13. NO EFFECT EMPLOYEE BENEFITS PLANS OR PROGRAMS
The termination of Executive's employment during the term of this Agreement
or thereafter, whether by the Company, the Bank or by Executive, shall have no
effect on the vested rights of Executive under the Company's or the Bank's
qualified or non-qualified retirement, pension, savings, thrift, profit-sharing
or stock bonus plans, group life, health (including hospitalization, medical and
major medical), dental, accident and long term disability insurance plans, or
other employee benefit plans or programs, or compensation plans or programs in
which Executive was a participant.
14. REQUIRED REGULATORY PROVISIONS
(a) Notwithstanding anything herein contained to the contrary, any payments
to Executive by the Company, whether pursuant to this Agreement or otherwise,
are subject to and conditioned upon their compliance with Section 18(k) of the
Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and the regulations
promulgated thereunder in 12 C.F.R. Part 359.
(b) The Company or the Bank may terminate the Executive's employment at any
time and for any reason, but any termination by the Company or the Bank, other
than Termination for Cause, shall not prejudice Executive's right to
compensation or other benefits under this Agreement.
15. NO ATTACHMENT
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
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(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Bank and their respective successors and assigns.
16. ENTIRE AGREEMENT; MODIFICATION AND WAIVER
(a) This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof. No modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
(b) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(c) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
17. SEVERABILITY
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
18. HEADINGS FOR REFERENCE ONLY
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
19. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Delaware but
only to the extent not superseded by federal law.
20. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators, one of whom shall be selected by the Company, one of whom
shall be selected by Executive and the third of whom shall be selected by the
other two arbitrators. The panel shall sit in a location within fifty (50) miles
from the location of the Company, in accordance with the rules of the Judicial
Mediation and Arbitration Systems (JAMS) then in effect. Judgment may be entered
on the arbitrators award in any court having jurisdiction; provided, however,
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that Executive shall be entitled to seek specific performance of his right to be
paid until the Date of Termination during the pendency of any dispute or
controversy arising under or in connection with this Agreement.
21. PAYMENT OF LEGAL FEES
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Company, provided that the dispute or interpretation has
been settled by Executive and the Company or resolved in Executive's favor. Such
payment or reimbursement shall be made by the Bank not later than two months
after the dispute or interpretation is resolved in Executive's favor.
22. INDEMNIFICATION
During the term of this Agreement, the Company shall provide Executive
(including his heirs, executors and administrators) with coverage under a
standard directors and officers liability insurance policy at its expense, and
shall indemnify Executive (and his heirs, executors and administrators) to the
fullest extent permitted under Delaware law against all expenses and liabilities
reasonably incurred by him in connection with or arising out of any action, suit
or proceeding in which he may be involved by reason of his having been a
director or officer of the Company (whether or not he continues to be a director
or officer at the time of incurring such expenses or liabilities), such expenses
and liabilities to include, but not be limited to, judgments, court costs and
attorneys fees and the cost of reasonable settlements (such settlements must be
approved by the Board of Directors of the Company). If such action, suit or
proceeding is brought against Executive in his capacity as an officer or
director of the Company, however, such indemnification shall not extend to
matters as to which Executive is finally adjudged to be liable for willful
misconduct in the performance of his duties.
23. SUCCESSOR TO THE COMPANY
The Company shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or the Company, expressly
and unconditionally to assume and agree to perform the Company's obligations
under this Agreement, in the same manner and to the same extent that the Company
would be required to perform if no such succession or assignment had taken
place.
[Signature Page Follows]
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SIGNATURES
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer and Executive has signed this Agreement, as of the
day and date first above written.
ATTEST: INVESTORS BANCORP, INC.
/s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxxx
---------------------------------- -------------------------------
Secretary
WITNESS: EXECUTIVE:
/s/ Xxxxxxxxx Xxxxx /s/ Xxxx Xxxxxxxxx
---------------------------------- -----------------------------------
Xxxx Xxxxxxxxx
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