XXXXX SAVINGS FINANCIAL SERVICES GROUP, INC.
EMPLOYMENT AGREEMENT
This AGREEMENT is made effective as of ____________________, by and among
Xxxxx Savings Financial Services Group, Inc. ("Financial Services"), a New
Jersey chartered corporation with its principal administrative office at 1195
Hamburg Turnpike, Wayne, New Jersey, Wayne Savings Bank, FSB, a federal savings
bank, the parent company for Financial Services (the "Institution"), and Xxxx
Xxx ("Executive"). Any references to Xxxxx Bancorp, Inc. (the "Parent Holding
Company") refer to the holding company for the Institution.
WHEREAS, Financial Services wishes to assure itself of the services of
Executive for the period provided in this Agreement; and
WHEREAS, Executive is willing to serve in the employ of Financial Services
on a full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, Executive agrees to serve as
President of Financial Services. Executive shall render administrative and
management services to Financial Services such as are customarily performed by
persons situated in a similar executive capacity and such other duties as are
from time to time assigned to her by the Board of Directors. During said period,
Executive also agrees to serve, if elected, as an officer and director of any
affiliate of Financial Services.
2. TERMS AND DUTIES.
(a) The period of Executive's employment under this Agreement shall be
deemed to have commenced as of the date first above written and shall continue
for a period of thirty-six (36) full calendar months thereafter. Commencing on
the first anniversary date of this Agreement, and continuing on each anniversary
thereafter, the disinterested members of the board of directors of Financial
Services ("Board") may extend the Agreement for an additional year such that the
remaining term of the Agreement shall be three (3) years unless the Executive
elects not to extend the term of this Agreement by giving written notice in
accordance with Section 8 of this Agreement. The Board will review the Agreement
and Executive's performance annually for purposes of determining whether to
extend the Agreement and the rationale and results thereof shall be included in
the minutes of the Board's meeting. The Board shall give notice to the Executive
as soon as possible after such review as to whether the Agreement is to be
extended.
(b) During the period of Executive's employment hereunder, except for
periods of absence occasioned by illness, reasonable vacation periods, and
reasonable leaves of absence, Executive shall devote substantially all his
business time, attention, skill, and efforts to the
faithful performance of his duties hereunder including activities and services
related to the organization, operation and management of Financial Services and
participation in community and civic organizations; provided, however, that,
with the approval of the Board, as evidenced by a resolution of such Board, from
time to time, Executive may serve, or continue to serve, on the boards of
directors of, and hold any other offices or positions in, companies or
organizations, which, in such Board's judgment, will not present any conflict of
interest with Financial Services, or materially affect the performance of
Executive's duties pursuant to this Agreement.
(c) Notwithstanding anything herein to the contrary, Executive's employment
with Financial Services may be terminated by Financial Services or the Executive
during the term of this Agreement, subject to the terms and conditions of this
Agreement.
3. COMPENSATION AND REIMBURSEMENT.
(a) Financial Services shall pay Executive as compensation a salary of not
less than $__________ per year ("Base Salary"). Base Salary shall include any
amounts of compensation deferred by Executive under any qualified or unqualified
plan maintained by Financial Services. Such Base Salary shall be payable
bi-weekly. 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 one
year from the date of this Agreement. Such review shall be conducted by the
Board or by a Committee of the Board, delegated such responsibility by the
Board. The Board may by resolution increase Executive's Base Salary. Any
increase in Base Salary shall become the "Base Salary" for purposes of this
Agreement. In addition to the Base Salary provided in this Section 3(a),
Financial Services shall also provide Executive, at no premium cost to
Executive, with all such other benefits as are provided uniformly to permanent
full-time employees of Financial Services.
(b) The Executive shall be entitled to participate in any 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 Financial Services will not,
without Executive's prior written consent, make any changes in such plans,
arrangements or perquisites which would materially adversely affect Executive's
rights or benefits thereunder; except to the extent such changes are made
applicable to all Financial Services employees on a non-discriminatory basis.
Without limiting the generality of the foregoing provisions of this Subsection
(b), Executive shall 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 Institution or Financial Services in the
future to Financial Services' 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 shall be entitled to
incentive compensation and bonuses as provided in any plan of Financial Services
or its affiliates in which Executive is eligible to participate. Nothing paid to
the Executive under any such plan or arrangement will be deemed to be in lieu of
other compensation to which the Executive is entitled under this Agreement.
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(c) In addition to the Base Salary provided for by paragraph (a) of this
Section 3 and other compensation provided for by paragraph (b) of this Section
3, Financial Services shall pay or reimburse Executive for all reasonable travel
and other reasonable expenses incurred in the performance of Executive's
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. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by Financial Services of Executive's full-time employment hereunder
for any reason other than a termination governed by Section 5(a) hereof, or
Termination for Cause, as defined in Section 7 hereof; (ii) Executive's
resignation from Financial Services' employ upon any (A) failure to elect or
reelect or to appoint or reappoint Executive as President, unless consented to
by the Executive, (B) 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, coupled with a material reduction in the
benefits and perquisites being provided to Executive immediately preceding the
change in Executive's functions, duties or responsibilities, unless consented to
by Executive, (C) a relocation of Executive's principal place of employment by
more than 15 miles from its location at the effective date of this Agreement,
unless consented to by the Executive, (D) a material reduction in the benefits
and perquisites to the Executive from those being provided as of the effective
date of this Agreement, unless consented to by the Executive, or (E) a
liquidation or dissolution of Financial Services, or (F) breach of this
Agreement by Financial Services. Upon the occurrence of any event described in
clauses (A), (B), (C), (D), (E) or (F), above, Executive shall have the right to
elect to terminate his employment under this Agreement by resignation upon not
less than sixty (60) days prior written notice given within six full months
after the event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, on the Date of
Termination, as defined in Section 8, Financial Services shall be obligated to
pay Executive, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, an amount equal to the sum of:
(i) the amount of the remaining payments that the Executive would have earned if
he had continued his employment with Financial Services during the remaining
term of this Agreement at the Executive's Base Salary at the Date of
Termination; and (ii) the amount equal to the annual contributions that would
have been made on Executive's behalf to any employee benefit plans of Financial
Services or the Institution or Holding Company during the remaining term of this
Agreement based on contributions made (on an annualized basis) at the Date of
Termination; provided, however, that any payments pursuant to this subsection
and subsection 4(c) below shall not, in the aggregate, exceed three times
Executive's average annual compensation for the five most recent taxable years
that Executive has been employed by Financial Services or such lesser number of
years in the event that Executive shall have been employed by Financial Services
for less than five years. In the event the Institution is not in compliance with
its minimum capital requirements or if such payments pursuant to this subsection
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(b) would cause the Institution's capital to be reduced below its minimum
regulatory capital requirements, such payments shall be deferred until such time
as the Institution or successor thereto is in capital compliance. At the
election of the Executive, which election is to be made prior to an Event of
Termination, such payments shall be made in a lump sum as of the Executive's
Date of Termination. In the event that no election is made, payment to Executive
will be made on a monthly basis in approximately equal installments during the
remaining term of the Agreement. Such payments shall not be reduced in the event
the Executive obtains other employment following termination of employment.
(c) Upon the occurrence of an Event of Termination, Financial Services will
cause to be continued life, medical and disability coverage substantially
identical to the coverage maintained by Financial Services or the Institution
for Executive prior to his termination at no premium cost to the Executive,
except to the extent such coverage may be changed in its application to all
Financial Services or Institution employees. Such coverage shall cease upon the
expiration of the remaining term of this Agreement.
5. CHANGE IN CONTROL.
(a) For purposes of this Agreement, a "Change in Control" shall mean an
event of a nature that: (i) would be required to be reported in response to Item
1 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 1934, as amended (the
"Exchange Act"); or (ii) results in a Change in Control of Financial Services,
the Institution or the Parent Holding Company within the meaning of the Home
Owners' Loan Act of 1933, as amended, the Federal Deposit Insurance Act 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 voting
securities of Financial Services, the Institution or the Parent Holding Company
representing 25% or more of Financial Services', the Institution's or the Parent
Holding Company's outstanding voting securities or right to acquire such
securities except for any voting securities of Financial Services purchased by
the Institution or the Parent Holding Company and any voting securities
purchased by any employee benefit plan of Financial Services or the Institution
or the Parent Holding Company, 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 Parent 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 of reorganization, merger, consolidation,
sale of all or substantially all the assets of Financial Services or the
Institution or the Parent Holding Company or similar transaction occurs in which
Financial Services, the Institution or the Parent
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Holding Company is not the resulting entity; provided, however, that such an
event listed above will be deemed to have occurred or to have been effectuated
upon the receipt of all required regulatory approvals not including the lapse of
any statutory waiting periods.
(b) If a Change in Control has occurred pursuant to Section 5(a) or the
Board has determined that a Change in Control has occurred, Executive shall be
entitled to the benefits provided in paragraphs (c), and (d) of this Section 5
upon his subsequent termination of employment at any time during the term of
this Agreement due to: (1) Executive's dismissal or (2) Executive's voluntary
resignation following any demotion, loss of title, office or significant
authority or responsibility, coupled with a reduction in the compensation and
benefits being received by Executive immediately preceding the change in
Executive's functions, duties or responsibilities, or any material reduction in
annual compensation or benefits or relocation of his principal place of
employment by more than 15 miles from its location immediately prior to the
Change in Control, unless such termination is because of his death, disability,
retirement or termination for Cause.
(c) Upon Executive's entitlement to benefits pursuant to Section 5(b),
Financial Services shall pay Executive, or in the event of his subsequent death,
his beneficiary or beneficiaries, or his estate, as the case may be, a sum equal
to the greater of: (1) the payments due for the remaining term of the Agreement;
or (2) three (3) times Executive's average annual compensation for the five (5)
most recent taxable years that Executive has been employed by Financial Services
or such lesser number of years in the event that Executive shall have been
employed by Financial Services for less than five (5) years. Such average annual
compensation shall include Base Salary, commissions, bonuses, contributions on
Executive's behalf to any pension and/or profit sharing plan, severance
payments, retirement payments, directors or committee fees, fringe benefits paid
or to be paid to the Executive in any such year, and payment of any expense
items without accountability or business purpose or that do not meet the
Internal Revenue Service requirements for deductibility by Financial Services;
provided however, that any payment under this provision and subsection 5(d)
below shall not exceed three (3) times the Executive's average annual
compensation. In the event the Institution is not in compliance with its minimum
capital requirements or if such payments would cause the Institution's capital
to be reduced below its minimum regulatory capital requirements, such payments
shall be deferred until such time as the Institution or successor thereto is in
capital compliance. At the election of the Executive, which election is to be
made prior to a Change in Control, such payment may be made in a lump sum as of
the Executive's Date of Termination. In the event that no election is made,
payment to the Executive will be made in approximately equal installments on a
monthly basis over a period of thirty-six (36) months following the Executive's
termination. Such payments shall not be reduced in the event Executive obtains
other employment following termination of employment.
(d) Upon the Executive's entitlement to benefits pursuant to Section 5(b),
Financial Services will cause to be continued life, medical and disability
coverage substantially identical to the coverage maintained by Financial
Services for Executive prior to his severance at no premium cost to the
Executive, except to the extent that such coverage may be changed in its
application for all Institution employees on a non-discriminatory basis. Such
coverage and
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payments shall cease upon the expiration of thirty-six (36) months following the
Date of Termination.
6. CHANGE OF CONTROL RELATED PROVISIONS
Notwithstanding the provisions of Section 5, in no event shall the
aggregate payments or benefits to be made or afforded to Executive under said
paragraphs (the "Termination Benefits") constitute an "excess parachute payment"
under Section 280G of the Code or any successor thereto, and in order to avoid
such a result, Termination Benefits will be reduced, if necessary, to an amount
(the "Non-Triggering Amount"), the value of which is one dollar ($1.00) less
than an amount equal to three (3) times Executive's "base amount", as determined
in accordance with said Section 280G. The allocation of the reduction required
hereby among the Termination Benefits provided by Section 5 shall be determined
by Executive.
7. TERMINATION FOR CAUSE.
The term "Termination for Cause" shall include termination because of
Executive's personal dishonesty, incompetence, willful misconduct, any 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 material
breach of any provision of this Agreement. Notwithstanding the foregoing,
Executive shall not be deemed to have been Terminated for Cause unless and until
there shall have been delivered to him a Notice of Termination which shall
include a copy of a resolution duly adopted by the affirmative vote of not less
than a majority of the members of the Board at a meeting of the Board called and
held for that purpose (after reasonable notice to Executive and an opportunity
for him, together with counsel, to be heard before the Board), finding that in
the good faith opinion of the Board, Executive was guilty of conduct justifying
Termination for Cause and specifying the particulars thereof in detail. The
Executive shall not have the right to receive compensation or other benefits for
any period after Date of Termination for Cause. During the period beginning on
the date of the Notice of Termination for Cause pursuant to Section 8 hereof
through the Date of Termination for Cause, stock options and related limited
rights granted to Executive under any stock option plan shall not be exercisable
nor shall any unvested awards granted to Executive under any stock benefit plan
of Financial Services, the Institution or the Parent Holding Company or any
subsidiary or affiliate thereof, vest. At the Date of Termination for Cause,
such stock options and related limited rights and such unvested awards shall
become null and void and shall not be exercisable by or delivered to Executive
at any time subsequent to such Termination for Cause.
8. NOTICE.
(a) Any purported termination by Financial Services 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
6
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 the date specified in the Notice of
Termination (which, in the case of a Termination for Cause, shall not be less
than thirty days from the date such Notice of Termination is given).
(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, 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 therefrom 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, in the event the Executive is
terminated for reasons other than Termination for Cause, Financial Services will
continue to pay Executive his Base Salary in effect when the notice giving rise
to the dispute was given until the earlier of: (1) the resolution of the dispute
in accordance with this Agreement or (2) the expiration of the remaining term of
this Agreement as determined as of the Date of Termination. Amounts paid under
this Section are in addition to all other amounts due under this Agreement and
shall not be offset against or reduce any other amounts due under this
Agreement.
9. POST-TERMINATION OBLIGATIONS.
All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with this Section 9 for one (1) full year
after the earlier of the expiration of this Agreement or termination of
Executive's employment with Financial Services. Executive shall, upon reasonable
notice, furnish such information and assistance to Financial Services as may
reasonably be required by Financial Services in connection with any litigation
in which it or any of its subsidiaries or affiliates is, or may become, a party.
10. NON-COMPETITION.
(a) Upon any termination of Executive's employment hereunder pursuant to
Section 4 hereof, Executive agrees not to compete with Financial Services for a
period of one (1) year following such termination in any city, town or county in
which the Executive's normal business office is located and Financial Services
has an office or 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 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 Financial Services. The parties hereto,
recognizing that irreparable injury will result to Financial Services, its
business and property in the event of Executive's breach of this Subsection
10(a) agree that in the event of any
7
such breach by Executive, Financial Services 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, employees
and all persons acting for or under the direction of Executive. Nothing herein
will be construed as prohibiting Financial Services from pursuing any other
remedies available to Financial Services 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 Financial Services and
affiliates thereof, as it may exist from time to time, is a valuable, special
and unique asset of the business of Financial Services. Executive will not,
during or after the term of his employment, disclose any knowledge of the past,
present, planned or considered business activities of Financial Services or
affiliates thereof to any person, firm, corporation, or other entity for any
reason or purpose whatsoever. 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 Financial Services. Further, Executive may disclose
information regarding the business activities of the Bank to the OTS and the
Federal Deposit Insurance Corporation ("FDIC") pursuant to a formal regulatory
request. In the event of a breach or threatened breach by Executive of the
provisions of this Section, Financial Services 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 Financial Services
or affiliates thereof, or from rendering any services to any person, firm,
corporation, or other entity to whom such knowledge, in whole or in part, has
been disclosed or is threatened to be disclosed. Nothing herein will be
construed as prohibiting Financial Services from pursuing any other remedies
available to Financial Services for such breach or threatened breach, including
the recovery of damages from Executive.
11. SOURCE OF PAYMENTS.
(a) All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of Financial Services. The Institution, however,
guarantees payment and provision of all amounts and benefits due hereunder to
Executive and, if such amounts and benefits due from Financial Services are not
timely paid or provided by Financial Services, such amounts and benefits shall
be paid or provided by the Institution to the extent permissible under
applicable rules and regulations.
(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 under the Employment Agreement dated ________________,
1996, between Executive and the Institution, such compensation payments and
benefits paid by Financial Services will be subtracted from any amounts due
simultaneously to Executive under similar provisions of this Agreement. Payments
pursuant to this Agreement and Financial Services Agreement shall be allocated
in proportion to the services rendered and time expended on such activities by
Executive as determined by Financial Services and the Institution on a quarterly
basis.
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12. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between Financial Services or any
predecessor of Financial Services 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.
13. 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.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and Financial Services and their respective successors and assigns.
14. 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 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.
15. REQUIRED PROVISIONS.
(a) Financial Services may terminate Executive's employment at any time,
but any termination by Financial Services, other than Termination for Cause,
shall not prejudice Executive's right to compensation or other benefits under
this Agreement. Executive shall not have the right to receive compensation or
other benefits for any period after Termination for Cause as defined in Section
7 hereinabove.
(b) If Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of Financial Services' 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), Financial Services' 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, Financial
Services
9
may in its discretion: (i) pay Executive all or part of the compensation
withheld while their contract obligations were suspended; and (ii) reinstate (in
whole or in part) any of the obligations which were suspended.
(c) If Executive is removed and/or permanently prohibited from
participating in the conduct of Financial Services' affairs by an order issued
under Section 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 Financial Services under this
contract shall terminate as of the effective date of the order, but vested
rights of the contracting parties shall not be affected.
(d) If Financial Services 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
Financial Services under this contract shall terminate as of the date of
default, but this paragraph shall not affect any vested rights of the
contracting parties.
(e) All obligations of Financial Services 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), or the FDIC at the time the FDIC enters into an
agreement to provide assistance to or on behalf of the Institution 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 Institution or Financial Services or
when the Institution or Financial Services 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.
(f) Any payments made to Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C.
ss.1828(k) and 12 C.F.R. ss.545.121 and any rules and regulations promulgated
thereunder.
16. REINSTATEMENT OF BENEFITS UNDER SECTION 15(b).
In the event Executive is suspended and/or temporarily prohibited from
participating in the conduct of Financial Services' affairs by a notice
described in Section 15(b) hereof (the "Notice") during the term of this
Agreement and a Change in Control, as defined herein, occurs, the Institution
will assume its obligation to pay and Executive will be entitled to receive all
of the termination benefits provided for under Section 5 of this Agreement upon
the Institution's receipt of a dismissal of charges in the Notice.
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.
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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.
The validity, interpretation, performance and enforcement of this Agreement
shall be governed by the laws of the State of New Jersey, 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 sitting in a location selected by Executive within fifty
(50) miles from the location of Financial Services, 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; provided, however,
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.
In the event any dispute or controversy arising under or in connection with
Executive's termination is resolved in favor of Executive, whether by judgment,
arbitration or settlement, Executive shall be entitled to the payment of all
back-pay, including salary, bonuses and any other cash compensation, fringe
benefits and any compensation and benefits due Executive under this Agreement.
21. 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 Financial Services if Executive is successful on the
merits pursuant to a legal judgment, arbitration or settlement.
22. INDEMNIFICATION.
(a) Financial Services shall provide Executive (including his heirs,
executors and administrators) with coverage under a standard directors' and
officers' liability insurance policy at its expense, or in lieu thereof, shall
indemnify Executive (and his heirs, executors and administrators) as permitted
under federal 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
Financial Services (whether or not he continues to be a director or officer at
the time of incurring such expenses or liabilities),
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such expenses and liabilities to include, but not be limited to, judgments,
court costs and attorneys' fees and the cost of reasonable settlements.
(b) Any payments made to Executive pursuant to this Section are subject to
and conditioned upon compliance with 12 C.F.R. ss. 545.121 and any rules or
regulations promulgated thereunder.
23. SUCCESSOR TO FINANCIAL SERVICES.
Financial Services 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 Financial Services, the Institution
or Parent Holding Company, expressly and unconditionally to assume and agree to
perform Financial Services' obligations under this Agreement, in the same manner
and to the same extent that Financial Services would be required to perform if
no such succession or assignment had taken place.
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SIGNATURES
IN WITNESS WHEREOF, Xxxxx Savings Financial Services Group, Inc. and Xxxxx
Savings Bank, FSB have caused this Agreement to be executed and their seals to
be affixed hereunto by their duly authorized officers and directors, and
Executive has signed this Agreement, on the _____ day of ________________, 1997.
ATTEST: Xxxxx Savings Financial Services Group, Inc.
BY:
---------------------------------- --------------------------------------
Secretary Chairman of the Board
[SEAL]
ATTEST: XXXXX SAVINGS BANK, FSB
(Guarantor)
BY:
---------------------------------- --------------------------------------
Secretary Chairman of the Board
[SEAL]
WITNESS:
---------------------------------- --------------------------------------
Executive
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