EMPLOYEE RETENTION AGREEMENT by and among THE DIME SAVINGS BANK OF WILLIAMSBURGH, DIME COMMUNITY BANCSHARES, INC. and
by
and among
THE
DIME SAVINGS BANK OF WILLIAMSBURGH,
DIME
COMMUNITY BANCSHARES, INC.
and
XXXXXX
X.
XXXXXX
made
and entered into as of
February
4, 2008
This
EMPLOYEE RETENTION
AGREEMENT (“Agreement”) is made and entered into as of February 4, 2008
by and among THE DIME SAVINGS
BANK of WILLIAMSBURGH, a savings bank organized and operating under the
federal laws of the United States and having its executive offices at 000
Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (“Bank”); DIME COMMUNITY BANCSHARES,
INC., a business corporation organized and existing under the laws of the
State of Delaware and having its executive offices at 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000 (“Holding Company”); and Xxxxxx X. Xxxxxx, an
individual residing at 00 Xxxx Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx,
00000(“Officer”).
W I T N E S S E T H:
WHEREAS, the Bank desires to
secure for itself the Officer's services; and
WHEREAS,
the Bank recognizes that a third party may at some time in the future pursue a
Change of Control of the Bank or the Holding Company and that this possibility
may result in the departure or distraction of the Bank's officers;
and
WHEREAS,
the Bank has determined that appropriate steps should be taken to
encourage
the continued attention and dedication of the Bank's officers, including the
Officer, to their duties for the Bank without the distraction that may arise
from the possibility of a Change of Control of the Bank or the Holding Company;
and
WHEREAS,
the Bank believes that, by assuring certain officers, including the
Officer,
of reasonable financial security in the event of a Change of Control of the Bank
or the Holding Company, such officers will be in a position to perform their
duties free from financial self interest and in the best interests of the Bank
and its shareholders; and
WHEREAS, for purposes of
securing the Officer's services for the Bank, the Board of Directors of the Bank
("Board") has authorized the proper officers of the Bank to enter into an
employee retention agreement with the Officer on the terms and conditions set
forth herein; and
WHEREAS, the Board of
Directors of the Holding Company has authorized the
Holding
Company to guarantee the Bank's obligations under such an employee
retention
agreement;
and
WHEREAS,
the Officer is willing to make the Officer's services available to the Bank on
the terms and conditions set forth herein;
NOW, THEREFORE, in
consideration of the premises and the mutual covenants and obligations
hereinafter set forth, the Bank, the Holding Company and the Officer hereby
agree as fol1ows:
Section
1.
Effective
Date
(a) This
Agreement shall be effective as of the date first above written and shall remain
in effect during the term of this Agreement which shall be for a period of three
(3) years commencing on the date of this Agreement, plus such extensions as are
provided pursuant to section 1(b); provided, however, that if the term
of this Agreement has not otherwise terminated, the term of this Agreement will
terminate on the date of the Officer's termination of employment with the Bank;
and provided, further,
that the obligations under section 8 of this Agreement shall survive the
term of this Agreement if payments become due hereunder.
(b) Prior to
each anniversary date of this Agreement, the Board shall consider the
advisability of an extension of the term in light of the circumstances then
prevailing and may, in its discretion, approve an extension to take effect as of
the upcoming anniversary date. If an extension is approved, the term
of this Agreement shall be extended so that it will expire three (3) years after
such anniversary date.
(c) Notwithstanding
anything herein contained to the
contrary: (i) the
Officer's employment with the Bank may be terminated at any time, subject to the
terms and conditions of this Agreement; and (ii) nothing in this Agreement shall
mandate or prohibit a continuation of the Officer's employment following the
expiration of the Assurance Period upon such terms and conditions as the Bank
and the Officer may mutually agree upon.
Section
2. Assurance
Period.
(a) The
assurance period ("Assurance Period") shall be for a period commencing on the
date of a Change of Control, as defined in section 10 of this Agreement, and
ending on the second anniversary of the date on which the Assurance Period
commences, plus such extensions as are provided pursuant to the following
sentence. The Assurance Period shall be automatically extended for one (1)
additional day each day, unless either the Bank or the Officer elects not to
extend the Assurance Period further by giving written notice to the other party,
in which case the Assurance Period shall become fixed and shall end on the
second anniversary of the date on which such written notice is given; provided, however, that if
following a Change of Control, the Office of Thrift Supervision (or its
successor) is the Bank's primary federal regulator, the Agreement shall be
subject to extension not more frequently than annually and only upon review and
approval of the Board.
(b) Upon
termination of the Officer's employment with the Bank, any daily extensions
provided pursuant to the preceding sentence, if not theretofore discontinued,
shall cease and the remaining unexpired Assurance Period under this Agreement
shall be a fixed period ending on the later of the second anniversary of the
date of the Change of Control, as defined in section 10 of this Agreement, or
the second anniversary of the date on which the daily extensions were
discontinued
Section
3. Duties.
During
the period of the Officer's employment that falls within the Assurance Period,
the Officer shall: (a) except to the extent allowed under section 6 of this
Agreement, devote his full business time and attention (other than during
weekends, holidays, vacation periods, and periods of illness, disability or
approved leave of absence) to the business and affairs of the Bank and use his
best efforts to advance the Bank's interests; (b) serve in the position to which
the Officer is appointed by the Bank, which, during the Assurance Period, shall
be the position that the Officer held on the day before the Assurance Period
commenced or any higher office at the Bank to which he may subsequently be
appointed; and (c) subject to the direction of the Board and the By-laws of the
Bank, have such functions, duties, responsibilities and authority commonly
associated with such position.
Section
4. Compensation.
In
consideration for the services rendered by the Officer during the Assurance
Period, the Bank shall pay to the Officer during the Assurance Period a salary
at an annual rate equal to the greater of:
(a) the
annual rate of salary in effect for the Officer on the day before
the
Assurance Period commenced; or
(b) such
higher annual rate as may be prescribed by or under the
authority
of the Board;
provided, however, that in no
event shall the Officer's annual rate of salary under this Agreement in effect
at a particular time during the Assurance Period be reduced without the
Officer's prior written consent. The annual salary payable under this section 4
shall be subject to review at least once annually and shall be paid in
approximately equal installments in accordance with the Bank's customary payroll
practices. Nothing in this section 4 shall be deemed to prevent the Officer from
receiving additional compensation other than salary for his services to the
Bank, or additional compensation for his services to the Holding Company, upon
such terms and conditions as may be prescribed by or under the authority of the
Board or the Board of Directors of the Holding Company.
Section
5.
Employee Benefit Plans
and Programs
Except
as otherwise provided in this Agreement, the Officer shall, during the Assurance
Period, be treated as an employee of the Bank and be eligible to participate in
and receive benefits under any qualified or non-qualified defined benefit or
defined contribution retirement plan, group life, health (including
hospitalization, medical and major medical), dental, accident and long term
disability insurance plans, and such other employee benefit plans and programs,
including, but not limited to, any incentive compensation plans or programs
(whether or not employee benefit plans or programs), any stock option and
appreciation rights plan, employee stock ownership plan and restricted
stock plan, as may from time to time be maintained by, or cover employees of,
the Bank, in accordance with the terms and conditions of such employee benefit
plans and programs and compensation plans and programs and with the Bank's
customary practices.
Section
6. Board
Memberships.
The
Officer may serve as a member of the boards of directors of such business,
community and charitable organizations as he may disclose to and as may be
approved by the Board (which approval shall not be unreasonably withheld), and
he may engage in personal business and investment activities for his own
account; provided, however,
that such service and personal business and investment activities shall
not materially interfere with the performance of his duties under this
Agreement.
Section
7. Working Facilities and
Expenses.
During
the Assurance Period, the Officer's principal place of employment shall be at
the Bank's executive offices at the address first above written, or at such
other location within the City of New York at which the Bank shall maintain its
principal executive offices, or at such other location as the Bank and the
Officer may mutually agree upon. The Bank shall provide the Officer, at his
principal place of employment, with a private office and support services and
facilities suitable to his position with the Bank and necessary or appropriate
in connection with the performance of his assigned duties under this Agreement.
The Bank shall reimburse the Officer for his ordinary and necessary business
expenses, including, without limitation, the Officer's travel and
entertainment expenses, incurred in connection with the performance of the
Officer's duties under this Agreement, upon presentation to the Bank of an
itemized account of such expenses in such form as the Bank may reasonably
require.
Section
8. Termination
of Employment with Severance Benefits.
(a) In
the event that the Officer's employment with the Bank shall terminate during the
Assurance Period, or prior to the commencement of the Assurance Period but
within three (3) months of and in connection with a Change of Control as defined
in section 10 of this Agreement on account of:
(i) The
Officer's voluntary resignation from employment with the Bank within ninety (90)
days following:
(A) the
failure of the Bank's Board to appoint or re-appoint or elect
or re-elect the Officer to serve in the same position in which the Officer
was serving, on the day before the Assurance Period commenced or a more
senior office;
(B) the
failure of the stockholders of the Holding Company to elect or
re-elect the Officer as a member of the Board, if he was a member of the
Board on the day before the Assurance Period commenced;
(C) the
expiration of a thirty (30) day period following the date on which
the Officer gives written notice to the Bank of its material failure,
whether by amendment of the Bank's Organization Certificate or By-laws,
action of the Board or the Holding Company's stockholders or otherwise,
to vest in the Officer the functions, duties, or responsibilities vested in
the Officer on the day before the Assurance Period commenced (or the
functions, duties and responsibilities of a more senior office to which the
Officer may be appointed), unless during such thirty (30) day period,
the Bank fully cures such failure;
(D) the
failure of the Bank to cure a material breach of this Agreement
by the Bank, within thirty (30) days following written notice
from the
Officer of such material breach;
(E) a
reduction in the compensation provided to the Officer, or a
material reduction in the benefits provided to the Officer under
the
Bank's
program of employee benefits, compared with the compensation and
benefits that were provided to the Officer on the day before the Assurance
Period commenced;
(F) a
change in the Officer's principal place of employment that would
result in a one-way commuting time in excess of the greater of (I)
30
minutes or (II) the Officer's commuting time immediately prior to such change;
or
(ii) the
discharge of the Officer by the Bank for any reason other that for
"cause" as provided in section 9(a);
then,
subject to section 21, the Bank shall provide the benefits and pay to the
Officer the amounts provided for under section 8(b) of this Agreement; provided, however, that if
benefits or payments become due hereunder as a result of the Officer's
termination of employment prior to the commencement of the Assurance Period, the
benefits and payments provided for under section 8(b) of this Agreement shall be
determined as though the Officer had remained in the service of the Bank (upon
the terms and conditions in effect at the time of his actual termination of
service) and had not terminated employment with the Bank until the date on which
the Officer's Assurance Period would have commenced.
(b) Upon
the termination of the Officer's employment with the Bank under circumstances
described in section 8(a) of this Agreement, the Bank shall pay and provide to
the Officer (or, in the event of the Officer's death, to the Officer's
estate):
(i) the
Officer's earned but unpaid compensation (including, without
limitation,
all items which constitute wages under section 190.1 of the New York Labor Law
and the payment of which is not otherwise provided for under this section 8(b))
as of the date of the termination of the Officer's employment with the Bank,
such payment to be made at the time and in the manner prescribed by law
applicable to the payment of wages but in no event later than thirty (30) days
after termination of employment
(ii) the
benefits, if any, to which the Officer is entitled as a former
employee
under the employee benefit plans and programs and compensation plans and
programs maintained for the benefit of the Bank's officers and
employees;
(iii) continued
group life, health (including hospitalization, medical and major medical),
accident and long term disability insurance benefits, in addition to that
provided pursuant to section 8(b)(ii) and after taking into account the coverage
provided by any subsequent employer, if and to the extent necessary to provide
for the Officer, for the remaining unexpired Assurance Period, coverage
equivalent to the coverage to which the Officer would have been entitled under
such plans (as in effect on the date of his termination of employment, or, if
his termination of employment occurs after a Change of Control, on the date of
such Change of Control, whichever benefits are greater) if the Officer had
continued working for the Bank during the remaining unexpired Assurance Period
at the highest annual rate of compensation achieved during the Officer's period
of actual employment with the Bank;
(iv) within
thirty (30) days following the Officer's termination of employment with the
Bank, a lump sum payment, in an amount equal to the present value of the
salary that the Officer would have earned if the Officer had continued working
for the Bank during the remaining unexpired Assurance Period at the highest
annual rate of salary achieved during the Officer's period of actual employment
with the Bank, where such present value is to be determined using a discount
rate equal to the applicable short-term federal rate prescribed under section
1274(d) of the Internal Revenue Code of 1986 ("Code") (“Applicable Short-Term
Rate”), compounded using the compounding periods corresponding to the Bank's
regular payroll periods for its officers, such lump sum to be paid in lieu of
all other payments of salary provided for under this Agreement in respect of the
period following any such termination;
(v) within
thirty (30) days following the Officer's termination of employment
with the Bank, a lump sum payment in an amount equal to the excess, if any,
of:
(A) the
present value of the aggregate benefits to which the Officer would be entitled
under any and all qualified and non-qualified defined benefit pension
plans maintained by, or covering employees of, the Bank if the Officer were 100%
vested thereunder and had continued working for the Bank during the remaining
unexpired Assurance Period, such benefits to be determined as of the date of
termination of employment by adding to the service actually recognized under
such plans an additional period equal to the remaining unexpired Assurance
Period and by adding to the compensation recognized under such plans for the
year in which termination of employment occurs all amounts payable under
sections 8(b)(i), (iv) and (vii);
(B) the
present value of the benefits to which the Officer is actually entitled under
such defined benefit pension plans as of the date of his
termination;
where
such present values are to be determined using the mortality tables prescribed
under section 415(b)(2)(E)(v) of the Code and a discount rate, compounded
monthly, equal to the applicable long-term federal rate prescribed under section
1274(d) of the Code for the month in which his employment
terminates ("Applicable Long-Term Rate").
(vi) within
thirty (30) days following the Officer's termination of employment with the
Bank, a lump sum payment in an amount equal to the present value of the
additional employer contributions (or if greater in the case of a leveraged
employee stock ownership plan or similar arrangement, the additional assets
allocable to him through debt service, based on the fair market value of such
assets at termination of employment) to which he would have been entitled under
any and all qualified and non-qualified defined contribution plans maintained
by, or covering employees of, the Bank, if he were 100% vested thereunder and
had continued working for the Bank during the remaining unexpired Assurance
Period at the highest annual rate of compensation achieved during the Officer's
period of actual employment with the Bank, and making the maximum amount of
employee contributions, if any, required under such plan or plans, such present
value to be determined on the basis of the discount rate, compounded using the
compounding period that corresponds to the frequency with which employer
contributions are made to the relevant plan, equal to the Applicable Short-Term
Rate; and
(vii) the
payments that would have been made to the Officer under any cash bonus or
long-term or short-term cash incentive compensation plan maintained by, or
covering employees of, the Bank, if he had continued working for the Bank during
the remaining unexpired Assurance Period and had earned the maximum bonus or
incentive award in each calendar year that ends during the remaining unexpired
Assurance Period, such payments to be equal to the product of:
(A) the
maximum percentage rate at which an award was ever available
to the Officer under such incentive compensation plan; multiplied by
(B) the
salary that would have been paid to the Officer during
each such calendar year at the highest annual rate of salary achieved during the
remaining unexpired Assurance Period, such payments to be made (without
discounting for early payment) within thirty (30) days following the Officer's
termination of employment; and
The Bank
and the Officer hereby stipulate that the damages which may be incurred by the
Officer following any such termination of employment are not capable of accurate
measurement as of the date first above written and that the payments and
benefits contemplated by this section 8(b) constitute a reasonable estimate
under the circumstances of all damages sustained as a consequence of any such
termination of employment, other than damages arising under or out of any stock
option, restricted stock or other non-qualified stock acquisition or investment
plan or program, it being understood and agreed that this Agreement shall not
determine the measurement of damages under any such plan or program in respect
of any termination of employment. Such damages shall be payable without any
requirement of proof of actual damage and without regard to the Officer's
efforts, if any, to mitigate damages. The Bank and the Officer further agree
that the Bank may condition the payments and benefits (if any) due under
sections 8(b)(iii), (iv), (v), (vi) and (vii) on the receipt of the Officer's
resignation from any and all positions which he holds as an officer, director or
committee member with respect to the Bank, the Company or any subsidiary or
affiliate of either of them.
Section
9. Termination
without Severance Benefits.
In
the event that the Officer's employment with the Bank shall terminate during the
Assurance Period on account of:
(a) the
discharge of the Officer for "cause," which, for purposes of this
Agreement shall mean personal dishonesty, incompetence, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties, willful violation of any law, rule or regulation (other
than traffic violations or similar offenses) or final cease and desist order, or
any material breach of this Agreement, in each case as measured against
standards generally prevailing at the relevant time in the savings and community
banking industry; provided,
however, that the Officer shall not be deemed to have been discharged for
cause unless and until he shall have received a written notice of termination
from the Board, accompanied by a resolution duly adopted by affirmative vote of
a majority of the entire Board at a meeting called and held for such purpose
(after reasonable notice to the Officer and a reasonable opportunity for the
Officer to make oral and written presentations to the members of the Board, on
his own behalf, or through a representative, who may be his legal counsel, to
refute the grounds for the proposed determination) finding that in the good
faith opinion of the Board grounds exist for discharging the Officer for cause;
or
(b) the
Officer's voluntary resignation from employment with the Bank for reasons other
than those specified in section 8(a)(i); or
(c) the
Officer's death; or
(d) a
determination that the Officer is eligible for long-term disability benefits
under the Bank's long-term disability insurance program or, if there is no
such program,
under the federal Social Security Act;
then the
Bank shall have no further obligations under this Agreement, other than the
payment to the Officer (or, in the event of his death, to his estate) of his
earned but unpaid salary as of the date of the termination of his employment,
and the provision of such other benefits, if any, to which the Officer is
entitled as a former employee under the employee benefit plans and programs
and compensation plans and programs maintained by, or covering employees of, the
Bank.
Section
10. Change of
Control.
(a) A
Change of Control of the Bank ("Change of Control") shall be deemed to have
occurred upon the happening of any of the following events:
(i) approval
by the stockholders of the Bank of a transaction that would result in the
reorganization, merger or consolidation of the Bank, respectively, with one or
more other persons, other than a transaction following which:
(A) at
least 51% of the equity ownership interests of the entity resulting
from such transaction are beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) in substantially the same relative
proportions by persons who, immediately prior to such transaction, beneficially
owned (within the meaning of Rule 13d-3 promulgated under the Exchange Act) at
least 51% of the outstanding equity ownership interests in the Bank;
and
(B) at
least 51% of the securities entitled to vote generally in the
election of directors of the entity resulting from such transaction are
beneficially owned (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) in substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) at least 51% of the securities
entitled to vote generally in the election of directors of the
Bank;
(ii) the
acquisition of substantially all of the assets of the Bank or
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of the outstanding securities of the Bank entitled
to vote generally in the election of directors by any person or by any persons
acting in concert, or approval by the stockholders of the Bank of any
transaction which would result in an acquisition;
(iii) a
complete liquidation or dissolution of the Bank, or approval by the
stockholders of the Bank of a plan for such liquidation or
dissolution;
(iv) the
occurrence of any event if, immediately following such event, at least
fifty percent (50%) of the members of the Board do not belong to any of
the
following groups:
(A) individuals
who were members of the Board on the date of this
Agreement; or
(B) individuals
who first became members of the Board after the date
of this Agreement either:
(1) upon
election to serve as a member of the Board by affirmative
vote of three-quarters (3/4) of the members of such Board, or
a nominating committee thereof, in office at the time of such
first election; or
(2) upon
election by the stockholders of the Board to serve as
a member of the Board, but only if nominated for election by
affirmative vote of three quarters(3/4) of the members of the
Board, or
of a nominating committee thereof, in office at the time of such
first nomination;
provided, however, that such
individual's election or nomination did not result from an actual or threatened
election contest (within the meaning of Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies or consents (within the meaning of Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) other than by or on behalf of the Board of
the Bank; or
(v) any
event which would be described in section 10(a)(i), (ii), (iii) or
(iv) if the term "Holding Company" were substituted for the term
"Bank" therein.
(b) In
no event, however, shall a Change of Control be deemed to have occurred as a
result of any acquisition of securities or assets of the Holding Company, the
Bank or any subsidiary of either of them, by the Holding Company, the Bank or
any subsidiary of either of them, or by any employee benefit plan maintained by
any of them.
Section
11. No Effect
on Employee Benefit Plans or Programs.
The
termination of the Officer's employment during the Assurance Period or
thereafter, whether by the Bank or by the Officer, shall have no effect on the
rights and obligations of the parties hereto under the Bank's qualified and
non-qualified defined benefit or defined contribution retirement plans, group
life, health (including hospitalization, medical and major medical), dental,
accident and long term disability insurance plans or such other employee benefit
plans or programs, or compensation plans or programs (whether or not employee
benefit plans or programs) and any defined contribution plan, employee stock
ownership plan, stock option and appreciation rights plan, and restricted stock
plan, as may be maintained by, or cover employees of, the Bank from time to
time; provided, however,
that nothing in this Agreement shall be deemed to duplicate any
compensation or benefits provided under any agreement, plan or program covering
the Officer to which the Bank or the Holding Company is a party and any
duplicative amount payable under any such agreement, plan or program shall be
applied as an offset to reduce the amounts otherwise payable
hereunder.
Section
12. Successors and
Assigns.
This
Agreement will inure to the benefit of and be binding upon the Officer, his
legal representatives and testate or intestate distribute, and the Bank and the
Holding Company, their respective successors and assigns, including any
successor by merger or consolidation or a statutory receiver or any other person
or firm or corporation to which all or substantially all of the respective
assets and business of the Bank or the Holding Company may be sold or otherwise
transferred.
Section
13. Notices.
Any
communication required or permitted to be given under this Agreement, including
any notice, direction, designation, consent, instruction, objection or waiver,
shall be in writing and shall be deemed to have been given at such time as it is
delivered personally, or five (5) days after mailing if mailed, postage prepaid,
by registered or certified mail, return receipt requested, addressed to such
party at the address listed below or at such other address as one such party may
by written notice specify to the other party:
If to
the Officer:
Xxxxxx X.
Xxxxxx
00 Xxxx
Xxxxxxxxx Xxxxx
Xxxxxxxxx,
XX 00000
If
to the Bank:
The
Dime Savings Bank of Williamsburgh
000
Xxxxxxxxx
Xxxxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention:
Corporate
Secretary
If to
the Holding Company:
Dime
Community Bancshares, Inc.
000
Xxxxxxxxx Xxxxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention: Corporate
Secretary
Section
14. Indemnification
and Attorneys' Fees.
The Bank
shall indemnify, hold harmless and defend the Officer against reasonable
costs, including legal fees, incurred by the Officer in connection with or
arising out of any action, suit or proceeding in which the Officer may be
involved, as a result of the Officer's efforts, in good faith, to defend or
enforce the terms of this Agreement; provided, however, that the Officer shall
have substantially prevailed on the merits pursuant to a judgment, decree or
order of a court of competent jurisdiction or of an arbitrator in an arbitration
proceeding, or in a settlement; provided, further, that this
section 14 shall not obligate the Bank to pay costs and legal fees on behalf of
the Officer under this Agreement in excess of $20,000. For purposes of this
Agreement, any settlement agreement which provides for payment of any amounts in
settlement of the Bank's obligations hereunder shall be conclusive evidence of
the Officer's entitlement to indemnification hereunder, and any such
indemnification payments shall be in addition to amounts payable pursuant to
such settlement agreement, unless such settlement agreement expressly provides
otherwise.
Section
15. Severability.
A
determination that any provision of this Agreement is invalid or unenforceable
shall not affect the validity or enforceability of any other provision
hereof.
Section
16. Waiver.
Failure
to insist upon strict compliance with any of the terms, covenants or conditions
hereof shall not be deemed a waiver of such term, covenant, or condition. A
waiver of any provision of this Agreement must be made in writing, designated as
a waiver, and signed by the party against whom its enforcement is sought. Any
waiver or relinquishment of any right or power hereunder at any one or more
times shall not be deemed a waiver or relinquishment of such right or power at
any other time or times.
Section
17. Counterparts.
This
Agreement may be executed in two (2) or more counterparts, each of which shall
be deemed an original, and all of which shall constitute one and the same
Agreement.
Section
18. Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with the
federal laws of the United States, and in the absence of controlling federal
law, the laws of the State of New York, without reference to conflicts of law
principles.
Section
19. Headings and
Construction.
The
headings of sections in this Agreement are for convenience of reference only and
are not intended to qualify the meaning of any section. Any reference to a
section number shall refer to a section of this Agreement, unless otherwise
stated.
Section
20. Entire
Agreement; Modifications.
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.
Section
21. Required
Regulatory Provisions.
The
following provisions are included for the purposes of complying with various
laws, rules and regulations applicable to the Bank:
(a) Notwithstanding
anything herein contained to the contrary, in no event
shall the aggregate amount of compensation payable to the Officer
under section 8(b) hereof (exclusive of amounts described in section
8(b) (i)) exceed three times the Officer’s average annual total compensation for
the last five consecutive calendar years to end prior to his
termination of employment with the Bank (or for his entire period of employment
with the Bank if less than five calendar years).
(b) Notwithstanding
anything herein contained to the contrary, any payments
to the Officer by the Bank, 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 (“FDI Act”), 12 U.S.C. Sec.
1828(k),
and
any regulations promulgated thereunder.
(c) Notwithstanding
anything herein contained to the contrary, if the Officer
is suspended from office and/or temporarily prohibited from participating
In the
conduct of the affairs of the Bank pursuant to a notice served under section
8 (e) (3)
or 8 (g) (1) of the FDI Act, 12 U.S.C. Sec. 1818 (e) (3) or 1818 (g) (1), the
Bank’s
obligations under this Agreement shall be suspended as of the date of
Service
of such notice, unless stayed by appropriate proceedings. If the
charges In such
notice are dismissed, the Bank, in its discretion, may (i) pay to the
Officer
all or part of the compensation withheld while the Bank’s obligations
Hereunder
were suspended and (ii) reinstate, in whole or in part, any of the Obligations
which were suspended.
(d) Notwithstanding
anything herein contained to the contrary, if the Officer 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 8 (g) (1) of the FDI Act, 12
U.S.C. sec. 1818 (e) (4) or (g) (1), all prospective obligations of the Bank
under this Agreement shall terminate as of the effective date of the order, but
vested rights and obligations of the Bank and the Officer shall not be
effected.
(e) Notwithstanding
anything herein contained to the contrary, if the
Bank is
in default (within the meaning of section 3(x)(1) of the FDI Act,
12
U.S.C.
Sec. 1813 (x) (1), all prospective obligations of the Bank under this Agreement
shall terminate as of the date of default, but vested rights and obligations of
the Bank and the Officer shall not be effected.
(f) Notwithstanding
anything herein contained to the contrary, all prospective obligations of the
Bank hereunder shall be terminated, except to the extent that a continuation of
this Agreement is necessary for the continued operation of the Bank: (i) by the
Director of the Office of Thrift Supervision ("OTS") or his designee or the
Federal Deposit Insurance Corporation ("FDIC"), 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 FDI Act, 12 U.S.C. sec. 1823(c);
(ii) by the Director of the OTS or his designee at the time such Director or
designee approves a supervisory merger to resolve problems related to the
operation of the Bank or when the Bank is determined by such Director to be in
an unsafe or unsound condition. The vested rights and obligations of the parties
shall not be affected.
If and to
the extent any of the foregoing provisions shall cease to be required by
applicable law, rule or regulation, the same shall become inoperative as though
eliminated by formal amendment of this Agreement.
Section
22. Guaranty.
The
Holding Company hereby irrevocably and unconditionally guarantees to the Officer
the payment of all amounts, and the performance of all other obligations, due
from the Bank in accordance with the terms of this Agreement as and when due
without any requirement of presentment, demand of payment, protest or notice of
dishonor or nonpayment. For purposes of this section 22, the application of
sections 21(a), (c), (d), (e) or (f) to the Bank shall have no effect on the
Holding Company's obligations hereunder.
Section
23. Maximum Limitations on
Severance Benefits
Notwithstanding
anything in this Agreement to the contrary, in the event that the payments
provided to the Officer (or in the event of his death, to his estate) under this
Agreement constitute an "excess parachute payment" under section 280G of the
Code, such payments shall be limited to the lesser of the
following:
(a) 2.99
times his average compensation (including salary, bonuses, amounts contributed
on behalf of the Officer to any employee benefit plans and programs and
compensation plans and programs maintained for the benefit of the Holding
Company's officers and employees and any other cash or non-cash compensation
paid to the Officer) for the period of five taxable years ending immediately
prior to his termination of employment; or
(b) whichever
of the following amounts yields the larger net payment to the Officer, after
provision for the tax (if any) imposed under section 4999 of the
Code:
(c) the
amount determined under section 23(a); or
(a) the
maximum amount (if any) which may be paid to the
Officer hereunder without giving rise to any tax under
section 4999 of the Code;
as
determined by the Officer in his sole discretion.
Section
24. Gender
Neutral
All
references in this Agreement to he or she shall be interpreted to include she or
he.
IN
WITNESS WHEREOF, the Bank and the Holding
Company have caused this Agreement to be executed and the Officer has
hereunto set his hand, all as of the day and year first above
written.
________________________________________Daniel
X. Xxxxxx
ATTEST: THE DIME SAVINGS of
WILLIAMSBURGH
By________________________
Secretary
[Seal] By_______________________________
Name : Xxxxxxx X.
Xxxxxxxxx
Title : Chairman of the Board &
CEO
ATTEST: DIME COMMUNITY BANCSHARES,
INC.
By________________________
Secretary By_______________________________
[Seal]
Name : Xxxxxxx X.
Xxxxxxxxx
Title : Chairman of the Board &
CEO
STATE OF
NEW YORK )
:ss.:
COUNTY OF
KINGS )
On
this____ day of ______, 200__, before me personally came Xxxxxx X. Xxxxxx to me
known, and known to me to be the individual described in the foregoing
instrument, who, being by me duly sworn, did depose and say that he resides at
the address set forth in said instrument, and that he signed his name to the
foregoing instrument.
_____________________
Notary
Public
STATE OF
NEW YORK )
:
ss.:
COUNTY OF
KINGS )
On
this___ day of _______, 200__, before me personally came Xxxxxxx X. Xxxxxxxxx to
me
known,
who, being by me duly sworn, did depose and say that he resides at 00 Xxxxxxx
Xxxxx, Xxxxxx Xxxxxx N. Y. 10309, that he is a member of the Board of Directors
of THE DIME SAVINGS
BANK OF
WILLIAMSBURGH, the savings bank described in and which executed the
foregoing
instrument;
that he knows the seal of said mutual savings bank; that the seal affixed to
said instrument is such seal; that it was so affixed by authority of the Board
of Directors of said savings bank; and that he signed his name thereto by like
authority.
______________________
Notary
Public
STATE OF
NEW
YORK )
: ss.:
COUNTY OF
KINGS )
On this
____day of _______, 200__, before me personally came Xxxxxxx X.
Xxxxxxxxx,
to me
known, who, being by me duly sworn, did depose and say that he resides at 00
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx, X.X. 00000, that he is a member of the Board of
Directors of DIME
COMMUNITY
BANCSHARES, INC., the corporation described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such seal; that it was so affixed by order of the Board of
Directors of said corporation; and that he signed his name thereto by like
order.
________________________
Notary
Public
