EXECUTIVE SUPPLEMENTAL RETIREMENT
INCOME AGREEMENT
FOR
XXXXX X. XXXX
Flatbush Federal Savings & Loan Association
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
March 1, 2006
EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
This Executive Supplemental Retirement Income Agreement ("Agreement"),
effective as of this 1st day of March 2006, by and between Flatbush Federal
Savings & Loan Association, a federally chartered savings association,
hereinafter referred to as "Association" and Xxxxx X. Xxxx, a key employee and
executive hereinafter referred to as "Executive."
WITNESSETH:
WHEREAS, Executive is employed by the Association;
WHEREAS, the Association recognizes the valuable services heretofore
performed for it by Executive and wishes to encourage continued employment;
WHEREAS, Executive wishes to be assured that he will be entitled to a
certain amount of additional compensation for some definite period of time from
and after his retirement from active service with the Association and its
affiliates or other termination of his employment and wishes to provide his
beneficiary with benefits from and after his death;
WHEREAS, the Association has adopted this Executive Supplemental Retirement
Income Agreement to supplement the benefits otherwise available to Executive
under plans sponsored by the Association and its affiliates;
WHEREAS, the parties hereto wish to provide the terms and conditions upon
which the Association shall pay such additional compensation to Executive after
his retirement or other termination of his employment and/or death benefits to
his beneficiary after his death;
WHEREAS, the parties hereto intend that this Agreement be considered an
unfunded arrangement, maintained primarily to provide supplemental retirement
income for Executive, a member of a select group of management or highly
compensated employee of the Association for purposes of the Employee Retirement
Income Security Act of 1974, as amended;
WHEREAS, this Agreement is intended to comply with Section 409A of the
Internal Revenue Code; and
WHEREAS, Executive Supplemental Retirement Income Agreement controls all
issues relating to the Supplemental Retirement Income Benefit as described
herein.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto agree as follows:
SECTION I
DEFINITIONS
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When used herein, the following words shall have the meanings below unless
the context clearly indicates otherwise:
1.1 "Act" means the Employee Retirement Income Security Act of 1974, as it may
be amended from time to time.
1.2 "Association" means Flatbush Federal Savings & Loan Association and any
successor thereto.
1.3 "Beneficiary" means the person or persons designated by Executive, in
writing, as beneficiary to whom the share of a deceased Executive's account
is payable. If no beneficiary is so designated, then Executive's Spouse, if
living, will be deemed the beneficiary. If Executive's Spouse is not
living, then the Children of Executive will be deemed the beneficiary. If
there are no living Children, then the Estate of Executive will be deemed
the beneficiary.
1.4 "Cause" means personal dishonesty, willful misconduct, willful malfeasance,
breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties, willful violation of any law, rule, regulation
(other than traffic violations or similar offenses), or final
cease-and-desist order, material breach of any provision of this Agreement,
or gross negligence in matters of material importance to the Association.
1.5 "Change in Control" of the Association shall mean (i) a change in ownership
of the Association under paragraph 1.5.1 below, or (ii) a change in
effective control of the Association under paragraph 1.5.2 below, or (iii)
a change in the ownership of a substantial portion of the assets of the
Association under paragraph 1.5.3 below:
1.5.1 Change in the ownership of the Association. A change in the ownership
of the Association shall occur on the date that any one person, or
more than one person acting as a group (as defined in Proposed
Treasury Regulation Section 1.409A-3(g)(5)(v)(B) or subsequent
guidance), acquires ownership of stock of the corporation that,
together with stock held by such person or group, constitutes more
than 50 percent of the total fair market value or total voting power
of the stock of such corporation.
1.5.2 Change in the effective control of the Association. A change in the
effective control of the Association shall occur on the date that
either (i) any one person, or more than one person acting as a group
(as defined in Proposed Treasury Regulation Section
1.409A-3(g)(5)(v)(B) or subsequent guidance), acquires (or has
acquired during the 12-month period ending on the date of the most
recent acquisition by such person or persons) ownership of stock of
the corporation possessing 35 percent or more of the total voting
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power of the stock of such corporation; or (ii) a majority of members
of the corporation's board of directors is replaced during any
12-month period by directors whose appointment or election is not
endorsed by a majority of the members of the corporation's board of
directors prior to the date of the appointment or election, provided
that for purposes of this paragraph 1.5.2(ii), the term corporation
refers solely to a corporation for which no other corporation is a
majority shareholder.
1.5.3 Change in the ownership of a substantial portion of the Association's
assets. A change in the ownership of a substantial portion of the
Association's assets shall occur on the date that any one person, or
more than one person acting as a group (as defined in Proposed
Treasury Regulation Section 1.409A-3(g)(5)(v)(B) or subsequent
guidance), acquires (or has acquired during the 12-month period ending
on the date of the most recent acquisition by such person or persons)
assets from the corporation that have a total gross fair market value
equal to or more than 40 percent of the total gross fair market value
of (i) all of the assets of the Association or (ii) the value of the
assets being disposed of, either of which is determined without regard
to any liabilities associated with such assets.
1.5.4 Notwithstanding anything herein to the contrary, a Change in Control
shall not be deemed to have occurred upon the conversion of Flatbush
Federal Bancorp, Inc.'s mutual holding company parent to stock form,
or in connection with any reorganization used to effect such a
conversion.
1.5.5 Each of the sub-paragraphs 1.5.1 through 1.5.3 of this Section 1.5
shall be construed and interpreted consistent with the requirements of
Proposed Treasury Regulations Section 1.409A-3(a) or subsequent
guidance, except to the extent that such proposed regulations are
superceded by subsequent guidance.
1.6 "Children" means Executive's children, both natural and adopted, then
living at the time payments are due the Children under this Agreement.
1.7 "Disability" means any case in which a Participant: (i) is unable to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or
can be expected to last for a continuous period of not less than 12 months;
or (ii) is, by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to
last for a continuous period of not less than 12 months, receiving income
replacement benefits for a period of not less than 3 months under an
accident and health plan covering employees of the Participant's employer.
1.8 "Code" means the Internal Revenue Code of 1986 as amended from time to
time.
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1.9 "Early Retirement Benefit" means the benefit payable to Executive upon
retirement from service after attainment of Executive's sixtieth (60 th)
birthday but prior to his Normal Retirement Date.
1.10 "Early Retirement Date" means the first day of the month coincident with or
next following Executive's termination of employment with the Association
after attainment of age sixty (60).
1.11 "Effective Date" shall be March 1, 2006.
1.12 "Estate" means the Estate of Executive.
1.13 "Interest Factor" means six percent (6%) or such other rate as is
reasonably determined by the Board of Directors from time to time.
1.14 "Normal Retirement Date" means the first day of the month coincident with
or next following Executive's sixty-fifth (65th) birthday.
1.15 "Postponed Retirement Date" means the first day of the month coincident
with or next following Executive's termination of employment with the
Association after his Normal Retirement Date.
1.16 "Separation from Service" shall mean, consistent with Code Section
409A(2)(a)(i), the Executive's death, retirement, or termination of
employment. No Separation from Service shall be deemed to occur due to
military leave, sick leave or other bona fide leave of absence if the
period of such leave does not exceed six months or, if longer, so long as
the Executive's right to reemployment is provided by law or contract. If
the leave exceeds six months and the Executive's right to reemployment is
not provided by law or by contract, then the Executive shall have a
Separation from Service on the first date immediately following such
six-month period. The Executive shall not be treated as having a Separation
from Service if the Executive provides more than insignificant services for
Flatbush Federal Bancorp, Inc. and the Association following the
Executive's actual or purported termination of employment with Flatbush
Federal Bancorp, Inc. and the Association. Services shall be treated as not
being insignificant if such services are performed at an annual rate that
is at least equal to 20 percent of the services rendered by the Executive
for Flatbush Federal Bancorp, Inc. and the Association, on average, during
the immediately preceding three full calendar years of employment (or if
employed less than three years, such shorter period of employment) and the
annual base compensation for such services is at least equal to 20 percent
of the average base compensation earned during the final three full
calendar years of employment (or if employed less than three years, such
shorter period of employment). Where the Executive continues to provide
services to a previous employer in a capacity other than as an employee, a
Separation from Service will not be deemed to have occurred if the
Executive is providing services at an annual rate that is 50 percent or
more of the services rendered, on average, during the immediate preceding
three full calendar years of employment (or if employed less
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than three years, such lesser period) and the annual base compensation for
such services is 50 percent or more of the annual base compensation earned
during the final three full calendar years of employment (or if less, such
lesser period).
1.17 "Specified Employee" means any Participant who also satisfies the
definition of "key employee" as such term is defined in Code Section
416(i). In the event a Participant is a Specified Employee, no distribution
shall be made to such Participant upon Separation from Service prior to the
date which is six (6) months following Separation from Service.
1.18 "Spouse" means the individual to whom Executive is legally married at the
time of Executive's death.
1.19 "Supplemental Retirement Income Benefit" means an annual retirement benefit
equal to twenty percent (20%) of Executive's highest average annual base
salary (over the consecutive 36 month period immediately preceding
Executive's termination of employment).
1.20 "Survivor's Benefit" means the benefit provided under Section 2.1 to
Executive's Beneficiary if Executive dies while in active employment of the
Association.
SECTION II
PRE RETIREMENT AND POST RETIREMENT DEATH BENEFITS
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2.1 Death Prior to Termination of Employment. If Executive dies prior to
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termination of employment, Executive's Beneficiary shall be entitled to the
Survivor's Benefit. Such benefit shall be paid monthly in one hundred
eighty (180) equal installments. The survivor's benefit shall be equal to
the Supplemental Retirement Income Benefit under Section 1.19 determined,
in the case of a pre-retirement death, as if Executive retired on his
Normal Retirement Date and commenced receiving benefits at such time.
Notwithstanding anything to the contrary herein, the Survivor Benefit
payable hereunder shall not be greater than the Supplemental Retirement
Income Benefit that would have been payable to Executive at his Normal
Retirement Date.
The Survivor's Benefit shall be payable in equal monthly installments for
one hundred eighty (180) months. The first installment shall begin within
thirty (30) days after notification of the date of death of Executive.
2.2 Death Subsequent to Retirement. In the event of the death of Executive
---------------------------------
while receiving monthly benefits under this Agreement, but prior to
receiving one hundred eighty (180) equal monthly payments, the unpaid
balance of such equal monthly payments shall continue to be paid monthly to
Executive's Beneficiary until the total of one hundred eighty (180) such
payments have been made. In the event Executive dies following his Normal
Retirement Date, but before commencement of any payments, the Supplemental
Retirement Income Benefit shall be paid to Executive's
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Beneficiary in one hundred eighty (180) equal monthly payments commencing
within thirty (30) days after the Association is notified of Executive's
death.
SECTION III
SUPPLEMENTAL RETIREMENT INCOME BENEFIT
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AND DISABILITY BENEFIT
----------------------
3.1 Normal Retirement Benefit. Upon Executive's retirement coincident with or
-------------------------
following his Normal Retirement Date, the Association shall commence
payments of the Supplemental Retirement Income Benefit. Such payments shall
commence the first day of the month next following Executive's actual
retirement date and shall be payable monthly thereafter for as long as
Executive shall live, but not less than one hundred eighty (180) months. In
the event Executive is a Specified Employee, such payments will commence
the first day of the seventh (7th) month next following Executive's
Separation from Service, with the amount of the first payment equaling
seven (7) monthly installments and with the remainder payable monthly
thereafter for as long as Executive shall live, with one hundred
seventy-three (173) monthly payments guaranteed.
3.2 Early Retirement Benefit. Executive shall have the right, if elected no
--------------------------
later than December 31, 2006, to receive an Early Retirement Benefit
provided he shall have attained the age of sixty (60) and remained in
continuous service from the date of this Agreement until termination of
employment. The Early Retirement Benefit shall be equal to the Supplemental
Retirement Income Benefit ("SRIB") calculated under Section 1.19 and
reduced by five percent (5%) for each full twelve month period that the
Early Retirement Benefit is received before Executive's Normal Retirement
Date, measured from Executive's Early Retirement Date and ending the day
before his 65th birthday, as set forth below:
Period Commencing
at Age % of SRIB
------ ---------
60 75%
61 80%
62 85%
63 90%
64 95%
Such payments will commence on the first day of the month following
Executive's Early Retirement Date and shall be payable monthly thereafter
for as long as Executive shall live, but not less than one hundred eighty
(180) months. In the event Executive is a Specified Employee, such payments
will commence the first day of the seventh (7th) month next following
Executive's Early Retirement Date (upon which the Executive will Separate
from Service), with the amount of the first payment equaling seven (7)
monthly installments and with the remainder payable monthly thereafter for
as long as Executive shall live, but not less than one hundred
seventy-three (173) months.
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3.3 Disability. If Executive becomes Disabled prior to reaching his Normal
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Retirement Date, while covered by the provisions of this Agreement,
Executive shall be entitled to a Supplemental Disability Benefit commencing
within thirty (30) days after a determination by the Board of Directors
that the Executive is Disabled. The Supplemental Disability Benefit shall
be equal to the Supplemental Retirement Income Benefit ("SRIB") calculated
under Section 1.19 as if Executive retired on the date of his termination
of employment due to Disability and reduced by five percent (5%) per year
for each full twelve month period that such Disability occurs prior to
Executive's Normal Retirement Date:
Disability Commencing
at Age % of SRIB
------ ---------
53 40%
54 45%
55 50%
56 55%
57 60%
58 65%
59 70%
60 75%
61 80%
62 85%
63 90%
64 95%
In the event Executive dies at any time after termination of employment due
to Disability but prior to commencement or completion of one hundred eighty
(180) monthly payments, the Association shall pay to Executive's
Beneficiary the Supplemental Disability Benefit in monthly installments
over one hundred eighty (180) months or a continuation of the monthly
installments for the remainder of the one hundred eighty (180) month
period.
3.4 Change in Control. In the event of Executive's termination of employment
coincident with or within three (3) years following a Change in Control,
other than due to termination for Cause, Executive shall be entitled to
receive the full Supplemental Retirement Income Benefit as if Executive had
continued in employment with the Association until he retired following his
Normal Retirement Date. At the election of the Executive, which election
must be made no later than December 31, 2006, the Association, or its
successor, shall commence payment of the Supplemental Retirement Income
Benefit either at the Normal Retirement Date or within thirty (30) days
after Executive's termination of employment. In the event Executive is a
Specified Employee and such payments are made at Separation from Service,
such payments will not commence prior to the first day of the seventh (7th)
month next following Executive's termination of employment, if so required
by Code Section 409A.
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SECTION IV
EXECUTIVE'S RIGHT TO ASSETS
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The rights of Executive, any Beneficiary of Executive, or any other person
claiming through Executive under this Agreement, shall be solely those of an
unsecured general creditor of the Association. Executive, the Beneficiary of
Executive, or any other person claiming through Executive, shall only have the
right to receive from the Association those payments as specified under this
Agreement. Executive agrees that he, his Beneficiary, or any other person
claiming through him shall have no rights or interests whatsoever in any asset
of the Association, including any insurance policies or contracts which the
Association may possess or obtain to informally fund this Agreement. Any asset
used or acquired by the Association in connection with the liabilities it has
assumed under this Agreement, except as expressly provided, shall not be deemed
to be held under any trust for the benefit of Executive or his Beneficiaries,
nor shall it be considered security for the performance of the obligations of
the Association. It shall be, and remain, a general, unpledged, and unrestricted
asset of the Asset of the Association.
SECTION V
RESTRICTIONS UPON FUNDING
-------------------------
The Association shall have no obligation to set aside, earmark or entrust
any fund or money with which to pay its obligations under this Agreement.
Executive, his Beneficiaries or any successor in interest to him shall be and
remain simply a general creditor of the Association in the same manner as any
other creditor having a general claim for matured and unpaid compensation. The
Association reserves the absolute right, at its sole discretion, to either fund
the obligations undertaken by this Agreement or to refrain from funding the same
and to determine the extent, nature, and method of such informal funding. Should
the Association elect to fund this Agreement, in whole or in part, through the
purchase of life insurance, disability policies or annuities, the Association
reserves the absolute right, in its sole discretion, to terminate such funding
at any time, in whole or in part. At no time shall Executive be deemed to have
any lien nor right, title or interest in or to any specific funding investment
or to any assets of the Association. If the Association elects to invest in a
life insurance, disability or annuity policy upon the life of Executive, then
Executive shall assist the Association by freely submitting to a physical
examination and supplying such additional information necessary to obtain such
insurance or annuities.
SECTION VI
ALIENABILITY AND ASSIGNMENT PROHIBITION
---------------------------------------
Neither Executive nor any Beneficiary under this Agreement shall have any
power or right to transfer, assign, anticipate, hypothecate, mortgage, commute,
modify or otherwise encumber in advance any of the benefits payable hereunder,
nor shall any of said benefits be subject to seizure for the payment of any
debts, judgments, alimony or separate maintenance owed by Executive or his
Beneficiary, nor be transferable by operation of law in the event of bankruptcy,
insolvency or otherwise. In the event Executive or any Beneficiary attempts
assignment, communication, hypothecation, transfer or disposal of the benefits
hereunder, the Association's liabilities shall forthwith cease and terminate.
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SECTION VII
TERMINATION OF EMPLOYMENT FOR CAUSE
-----------------------------------
Should Executive be terminated for Cause, his benefits under this Agreement
shall be forfeited and this Agreement shall become null and void.
SECTION VIII
ACT PROVISIONS
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8.1 Named Fiduciary And Administrator. The Association shall be the Named
------------------------------------
Fiduciary and Administrator of this Agreement. As Administrator, the
Association shall be responsible for the management, control and
administration of the Agreement as established herein. The Administrator
may delegate to others certain aspects of the management and operational
responsibilities of the Agreement, including the employment of advisors and
the delegation of ministerial duties to qualified individuals.
8.2 Claims Procedure And Arbitration. In the event that benefits under this
----------------------------------
Agreement are not paid to Executive (or to his Beneficiary in the case of
Executive's death) and such claimants feel they are entitled to receive
such benefits, then a written claim must be made to the Administrator named
above within thirty (30) days from the date payments are refused. The
Administrator and its Board of Directors shall review the written claim
and, if the claim is denied, in whole or in part, they shall provide in
writing within thirty (30) days of receipt of such claim their specific
reasons for such denial, reference to the provisions of this Agreement upon
which the denial is based and any additional material or information
necessary to perfect the claim. Such written notice shall further indicate
the additional steps to be taken by claimants if a further review of the
claim denial is desired.
If claimants desire a second review, they shall notify the Administrator in
writing within thirty (30) days of the first claim denial. Claimants may
review the Agreement or any documents relating thereto and submit any
issues, in writing, and comments they may feel appropriate. In its sole
discretion, the Administrator shall then review the second claim and
provide a written decision within thirty (30) days of receipt of such
claim. This decision shall likewise state the specific reasons for the
decision and shall include reference to specific provisions of the
Agreement upon which the decision is based.
If claimants continue to dispute the benefit denial based upon completed
performance of the Agreement or the meaning and effect of the terms and
conditions thereof, then claimants may submit the dispute to mediation,
administered by the American Arbitration Association ("AAA") (or a mediator
selected by the parties) in accordance with the AAA's Commercial Mediation
Rules. If mediation is not successful in resolving the dispute, it shall be
settled by arbitration administered by the AAA under its Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof.
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If it is finally determined that Executive (or his Beneficiary) is entitled
to the benefits set forth under this Agreement, then all amounts that
Executive (or his Beneficiary) would have received up to the time of such
final determination shall be paid to Executive (or his Beneficiary) with
interest (calculated using the Interest Factor) within thirty (30) days
after such final determination.
Where a dispute arises as to the Association's discharge of Executive for
Cause, such dispute shall likewise be submitted to arbitration as above
described and the parties hereto agree to be bound by the decision
thereunder.
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or questions of interpretation relating to this Agreement shall be
paid or reimbursed by the Association.
SECTION IX
MISCELLANEOUS
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9.1 No Effect on Employment Rights. Nothing contained herein shall confer upon
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Executive the right to be retained in the service of the Association nor
limit the right of the Association to discharge or otherwise deal with
Executive without regard to the existence of this Agreement.
9.2 Disclosure. Executive shall receive a copy of his Agreement and the
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Administrator will make available, upon request, a copy of any rules and
regulations that govern this Agreement.
9.3 Governing Law. The Agreement is established under, and will be construed
--------------
according to, the laws of the State of New York, to the extent that such
laws are not preempted by the Act and valid regulations published
thereunder.
9.4 Severability. In the event that any of the provisions of this Agreement or
------------
portion thereof, are held to be inoperative or invalid by any court of
competent jurisdiction, then: (1) insofar as is reasonable, effect will be
given to the intent manifested in the provisions held invalid or
inoperative, and (2) the validity and enforceability of the remaining
provisions will not be affected thereby.
9.5 Incapacity of Recipient. In the event Executive is declared incompetent and
-----------------------
a conservator or other person legally charged with the care of his person
or of his estate is appointed, any benefits under the Agreement to which
such Executive is entitled shall be paid to such conservator or other
person legally charged with the care of his person or his Estate. Except as
provided above in this paragraph, when the Association's Board of Directors
in its sole discretion, determines that an Executive is unable to manage
his financial affairs, the Board may direct the Association to make
distributions to any person for the benefit of such Executive.
9.6 Unclaimed Benefit. Executive shall keep the Association informed of his
------------------
current address and the current address of his Beneficiaries. The
Association shall not be
10
obligated to search for the whereabouts of any person. If the location of
Executive is not made known to the Association within three years after the
date on which any payment of Executive's Supplemental Retirement Income
Benefit may be made, payment may be made as though Executive had died at
the end of the three-year period. If, within one additional year after such
three-year period has elapsed, or, within three years after the actual
death of Executive, the Association is unable to locate any Beneficiary of
Executive, then the Association may fully discharge its obligation by
payment to the Estate.
9.7 Limitations on Liability. Notwithstanding any of the preceding provisions
------------------------
of the Agreement, neither the Association, nor any individual acting as an
employee or agent of the Association or as a member of the Board of
Directors shall be liable to Executive, former Executive, or any other
person for any claim, loss, liability or expense incurred in connection
with the Agreement, other than for payment of sums provided for in this
Agreement.
9.8 Gender. Whenever, in this Agreement, words are used in the masculine or
------
neuter gender, they shall be read and construed as in the masculine,
feminine or neuter gender, whenever they should so apply.
9.9 Affect on Other Corporate Benefit Agreements. Nothing contained in this
----------------------------------------------
Agreement shall affect the right of Executive to participate in, or be
covered by, any qualified or non-qualified pension, profit sharing, group,
bonus or other supplemental compensation or fringe benefit agreement
constituting a part of the Association's existing or future compensation
structure.
9.10 Headings. Headings and sub-headings in this Agreement are inserted for
--------
reference and convenience only and shall not be deemed a part of this
Agreement.
9.11 Establishment of Rabbi Trust. The Association may, but is not obligated to,
----------------------------
establish a rabbi trust into which the Association may contribute assets
which shall be held therein, subject to the claims of the Association's
creditors in the event of the Association's "Insolvency" as defined in the
agreement which establishes such rabbi trust, until the contributed assets
are paid to Executives and their Beneficiaries in such manner and at such
times as specified in this Agreement. In the event a rabbi trust is
established, it is the intention of the Association to make contributions
to the rabbi trust to provide the Association with a source of funds to
assist it in meeting the liabilities of this Agreement. The rabbi trust and
any assets held therein shall conform to the terms of the rabbi trust
agreement, which has been established in conjunction with this Agreement.
To the extent the language in this Agreement is modified by the language in
the rabbi trust agreement, the rabbi trust agreement shall supersede this
Agreement. Any contributions to the rabbi trust shall be made during each
year of the Agreement in accordance with the rabbi trust agreement. The
amount of such contribution(s) shall be equal to the full present value of
all benefit accruals under this Agreement, if any, less: (i) previous
contributions made on behalf of Executive to the rabbi trust, and (ii)
earnings to date on all such previous
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contributions. Notwithstanding anything to the contrary herein, in the
event of a Change in Control, a rabbi trust shall be established, if not
previously established, and the present value of the full Supplement
Retirement Income Benefit, less any amount previously contributed, shall be
contributed to the rabbi trust within thirty (30) days of the Change in
Control.
9.12 Tax Withholding. The Association may withhold from any benefit payable
----------------
under this Agreement all federal, state, city, or other taxes as shall be
required pursuant to any law or governmental regulation then in effect.
9.13 Tax Compliance. This Plan is adopted following the enactment of Code
---------------
Section 409A and is intended to be construed consistent with the
requirements of that Section, the Treasury regulations and other guidance
issued thereunder. If any provision of the Plan shall be determined to be
inconsistent therewith for any reason, then the Plan shall be construed, to
the maximum extent possible, to give effect to such provision in a manner
that is consistent with Code Section 409A, and if such construction is not
possible, as if such provision had never been included. In the event that
any of the provisions of this Plan or portion thereof are held to be
inoperative or invalid by any court of competent jurisdiction, then: (1)
insofar as is reasonable, effect will be given to the intent manifested in
the provisions held to be invalid or inoperative, and (2) the invalidity
and enforceability of the remaining provisions will not be affected
thereby.
SECTION X
NON-COMPETITION AFTER NORMAL RETIREMENT
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10.1 Non-Compete Clause. Except as stated in the second paragraph of this
-------------------
subsection, Executive expressly agrees that, as consideration for the
agreements of the Association contained herein and as a condition to the
performance by the Association of its obligations hereunder, throughout the
entire period beginning at the time of termination of employment until the
final payment is made to Executive, as provided herein, he will not,
without the prior written consent of the Association, engage in, become
interested, directly or indirectly, as a sole proprietor, as a partner in a
partnership, or as a substantial shareholder in a corporation, nor become
associated with, in the capacity of an employee, director, officer,
principal, agent, trustee or in any other capacity whatsoever, any
enterprise conducted in any city, town or county in which the Association
maintains an office at the time of Executive's termination of employment,
which enterprise is, or may deemed to be, competitive with any business
carried on by the Association as of the date of the termination of
Executive's employment or his retirement.
In the event Executive's termination follows a Change in Control or other
material change in the Association`s structure or business activities,
Executive shall be entitled to his Supplemental Retirement Income Benefit,
whether or not he enters into an arrangement that is deemed to be
competitive with Flatbush Federal Bancorp, Inc. and/or the Association.
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10.2 Breach. In the event of any breach by Executive of the agreements and
covenants contained herein, the Board of Directors of the Association shall
direct that any unpaid balance of any payments to Executive under this
Agreement be suspended, and shall thereupon notify Executive of such
suspensions, in writing. Thereupon, if the Board of Directors of the
Association shall determine that said breach by Executive has continued for
a period of six (6) months following notification of such suspension, all
rights of Executive and his Beneficiaries under this Agreement, including
rights to further payments hereunder, shall thereupon terminate.
SECTION XI
AMENDMENT/REVOCATION
--------------------
This Agreement shall not be amended, modified, or revoked at any time, in
whole or part, without the mutual written consent of Executive and the
Association, and such mutual consent shall be required even if Executive is no
longer employed by the Association.
SECTION XII
EXECUTION
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12.1 This Agreement sets forth the entire understanding of the parties hereto
with respect to the transactions contemplated hereby, and any previous
agreements or understandings between the parties hereto regarding the
subject matter hereof are merged into and superseded by this Agreement.
12.2 This Agreement shall be executed in triplicate, each copy of which, when so
executed and delivered, shall be an original, but all three copies shall
together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the day and date first above written.
ATTEST FLATBUSH FEDERAL SAVINGS & LOAN
ASSOCIATION
_________________________ ________________________________
Secretary Print name Title
WITNESS
__________________________ ________________________________
Executive
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EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
BENEFICIARY DESIGNATION
Executive, Xxxxx X. Xxxx, under the terms of a certain Executive
Supplemental Retirement Income Agreement by and between him and FLATBUSH FEDERAL
SAVINGS & LOAN, Brooklyn, New York, dated _________, __, 2006, hereby designates
the following Beneficiary to receive any guaranteed payments or death benefits
under such Agreement, following his death:
PRIMARY BENEFICIARY: ________________________
SECONDARY BENEFICIARY: ________________________
This Beneficiary Designation hereby revokes any prior Beneficiary
Designation which may have been in effect.
Such Beneficiary Designation is revocable.
DATE: __________________, 20__
____________________________ ________________________________
(WITNESS) (EXECUTIVE)
____________________________
(WITNESS)
