Exhibit 10.5 Salary Continuation Agreement between Financial Bancorp, Inc.,
Financial Savings and Loan Association and Xxxxx X. Xxxxxxxx
FINANCIAL FEDERAL SAVINGS BANK
SALARY AND BENEFITS CONTINUATION AGREEMENT
This Agreement is made effective as of September 24, 1996 by and among
Financial Federal Savings Bank (the "Bank"), a federally chartered savings
institution, Financial Bancorp, Inc. (the "Holding Company"), a corporation
organized under the laws of Delaware, with both their principal administrative
offices located at 00-00 Xxxxxx Xxxxxxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx, and Xxxxx
Xxxxxxxx (the "Executive").
WHEREAS, both the Bank and the Holding Company respectively have retained
Executive as President and Chief Executive Officer; and
WHEREAS, the Bank and the Holding Company wish to provide Executive with
salary continuation and continuation of other benefits enumerated herein in the
event of a change in control of either organization;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and upon the terms and conditions hereinafter provided the parties hereby agree
as follows:
1. Position and Responsibility.
During the period of employment hereunder, Executive agrees to serve
as President and Chief Executive Officer of both the Bank and the Holding
Company. Executive shall render administrative and management services to each
entity such as are customarily performed by persons in a similar executive
capacity. Executive also agrees to serve, if elected, as an Officer and/or
Director of any subsidiary of the Bank or the Holding Company.
2. Change in Control.
In the event of a change in control of either the Bank or the
Holding Company ("Change in Control") occurs, then subject to the terms and
conditions of this Agreement, Executive shall be entitled to the payments and
benefits set forth in Sections 3. and 4. of this Agreement. For purposes of this
Agreement a Change in Control of the Bank or the Holding Company shall be of a
nature that: (i) would be required to be reported in response to Item 1(a) of
the current report on Form 8-K, as in effect on the date hereof, pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 0000 (xxx "Xxxxxxxx Xxx");
or (ii) results in a Change in Control of the Bank or the Holding Company within
the meaning of the Home Owner's Loan Act of 1933, as amended, and the Rules and
Regulations promulgated by the Office of Thrift Supervision ("OTS") (or its
predecessor agency), as in effect on the date hereof (provided that in applying
the definition of change in control as set forth under the rules and regulations
of the OTS, the Board shall substitute its judgment for that of the OTS); 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 Bank or the Holding Company representing 20% or more of the combined voting
power of the Bank's or the Holding Company's outstanding securities except for
any securities of the Bank purchased by the Holding Company in connection with
the conversion of the Bank to the stock form and any securities purchased by any
tax qualified employee benefit
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plans of the Bank; 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 Holding 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 for reorganization, merger, consolidation, sale of all or substantially
all the assets of the Bank or the Holding Company or similar transaction has
been approved by the Incumbent Board and the shareholders, or otherwise occurs
upon which the Board so notifies the OTS of such occurrence, and in which the
Bank or Holding Company is not the resulting entity; or (d) a proxy statement
soliciting proxies from shareholders of the Holding Company, by someone other
than the current management of the Holding Company, seeking stockholder approval
of a plan of reorganization, merger or consolidation of the Holding Company or
Bank 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 or
transaction are exchanged for or converted into cash or property or securities
not issued by the Bank or the Holding Company shall be distributed; or (e) a
tender offer is made for 20% or more of the voting securities of the Bank or the
Holding Company.
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3. Salary Continuation Payments.
In the event a Change in Control of either the Bank or the Holding
Company occurs before September 24, 1998, Executive shall receive payment of his
then current base salary through September 24, 1998, made to him in a single sum
payment (subject to applicable withholding) on the date of the Change in
Control, without discount for early payment. Executive shall have no duty to
mitigate the amount of the payment or other benefits received hereunder, it
being agreed and understood that Executive's acceptance of other employment
shall not reduce the obligation of the Bank or the Holding Company hereunder.
4. Medical and Other Benefits.
In addition to any statutory right, if applicable, that Executive
may have with respect to the continuation of medical or other benefits, the Bank
and the Holding Company shall continue to provide Executive with life, medical,
dental and disability coverage substantially identical to the coverage
maintained by the Bank or the Holding Company immediately prior to the Change in
Control through September 24, 1998.
5. Source of Payments.
All payments to be made and benefits to be provided in this
Agreement shall be timely paid in cash or check from the general funds of the
Bank and provided by the Bank. The Holding Company, however, unconditionally
guarantees payment and provision of all amounts and benefits due hereunder to
Executive and, if such amounts and benefits due from the Bank are not timely
paid or provided by the Bank for any reason, such amounts and benefits shall be
paid or provided by the Holding
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Company. It is agreed and understood that the Executive is not entitled to
duplicate payments from both the Bank and the Holding Company.
6. Entire Agreement.
(a) This Agreement contains the entire understanding between the
parties hereto and supersedes any prior employment agreement between the Bank or
any predecessor of the Bank and Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to Executive of
a kind elsewhere provided. No provision of this Agreement shall be interpreted
to mean that Executive is subject to receiving fewer benefits than those
available to him without reference to this Agreement.
(b) This Agreement shall be binding upon, and inure to the benefit
of, Executive and the Bank and the Holding Company and their respective
successors and assigns.
7. Modification and Waiver.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) 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
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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.
8. Termination of Employment.
The Bank may terminate Executive's employment at any time. Executive
shall only be entitled to the payments and benefits hereunder in the event a
Change in Control occurs prior to a termination of employment.
9. Required Provisions.
The following provisions are included for the purposes of complying
with various laws, rules and regulations applicable to the Bank and, in the
event of a conflict between a Required Provision and another provision of this
Agreement, the Required Provision shall supersede such other provision and be
applied to the extent required by the law, rule or regulation applicable to the
Bank.
(a) If 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 8(g)(1) of the Federal Deposit Insurance Act, 12
U.S.C. ss.1818(e)(3) or (g)(1), the Bank's obligations under this contract
shall be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Bank shall (i) pay
Executive all of the compensation withheld while their contract obligations were
suspended and (ii) reinstate any of the obligations which were suspended.
(b) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section
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8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. ss.1818(e)(4)
or (g)(1), all obligations of the Bank under this contract shall terminate as of
the effective date of the order, but vested rights of the contracting parties
shall not be affected.
(c) If the Bank is in default as defined in Section 3(x)(1) of the
Federal Deposit Insurance Act, 12 U.S.C. ss.1813(x)(1) all obligations of the
Bank under this contract shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the contracting parties.
(d) All obligations of the Bank under this contract shall be
terminated, except to the extent determined that continuation of the contract is
necessary for the continued operation of the institution, (i) by the Director of
the OTS (or his designee), the FDIC or the Resolution Trust Corporation, at the
time the FDIC 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, 12 U.S.C. ss.1823(c); or (ii) by the Director of the OTS (or
his designee) at the time the Director (or his designee) approves a supervisory
merger to resolve problems related to the operations of the Bank or when the
Bank is determined by the Director to be in an unsafe or unsound condition. Any
rights of the parties that have already vested, however, shall not be affected
by such action.
(e) Any payments made to Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with Section 18(k) of
the Federal Deposit Insurance Act, 12 U.S.C. ss.1828(k) and any rules and
regulations promulgated thereunder.
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(f) In no event shall the aggregate dollar amount of the
compensation and benefits, if applicable, payable to the Executive under
Sections 3. and 4. hereof constituting "parachute payments" within the meaning
of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended, exceed
three times the Executive's average annual total compensation for the last five
consecutive calendar years ending prior to his termination of employment with
the Bank (or his entire period of employment with the Bank if less than five
calendar years).
10. 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.
11. 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.
12. Governing Law.
The validity, interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of New York, but only to
the extent not superseded by federal law.
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13. Arbitration.
Any dispute or controversy arising or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by Executive within fifty
(50) miles from the location of the Bank, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
14. Payment of Costs and Legal Fees.
All reasonable costs and 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 Bank if Executive is successful on the merits
pursuant to a legal judgment, arbitration or settlement.
15. Successor to the Bank.
The Bank 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 Holding Company,
expressly and unconditionally to assume and agree to perform the Bank's
obligations under this Agreement, in the same manner and to the same extent that
the Bank would be required to perform if no such succession or assignment had
taken place.
IN WITNESS WHEREOF, Financial Federal Savings Bank and Financial
Bancorp,
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Inc. have caused this Agreement to be executed by their duly authorized
director, and Executive has signed this Agreement, on the _____ day of
_________, 1996.
ATTEST: FINANCIAL FEDERAL SAVINGS BANK
______________________ By: ______________________________
Xxxxxxxx X. Xxxxxxx
ATTEST: FINANCIAL BANCORP, INC.
______________________ By: ______________________________
Xxxxxxxx X. Xxxxxxx
WITNESS:
______________________ __________________________________
Xxxxx Xxxxxxxx
