EXHIBIT 10.1
EMPLOYMENT AGREEMENT
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AGREEMENT by and between North Fork Bancorporation, Inc., a Delaware
corporation (the "Company"), and Xxxxxx Xxxxx (the "Executive"), dated as of the
15th day of February, 2004.
The Company has determined that it is in the best interests of the Company
and its shareholders to assure that the Company will have the continued
dedication of the Executive pending and following the merger (the "Merger") of
the Company and GreenPoint Financial Corporation, a Delaware corporation
("GreenPoint"), pursuant to the Agreement and Plan of Merger, dated as of
February 15th, 2004, between the Company and GreenPoint (the "Merger
Agreement"). Therefore, in order to accomplish these objectives, the Executive
and the Company desire to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effective Date. The "Effective Date" shall mean the date on which the
"Effective Time" (as defined in the Merger Agreement) of the Merger occurs. In
the event that the Effective Time shall not occur this Agreement shall be null
and void ab initio and of no further force and effect.
2. Employment Period. The Company hereby agrees to employ the Executive,
and the Executive hereby agrees to serve the Company, subject to the terms and
conditions of this Agreement, for the period commencing on the Effective Date
and ending on June 30, 2008 (the "Employment Period").
3. Terms of Employment. (a) Position and Duties. (i) During the Employment
Period, the Executive shall (A) serve as a Senior Executive Vice President of
the Company and as President of GreenPoint Bank (which for this purpose shall be
comprised of all of the operations and businesses of GreenPoint as of
immediately prior to the Effective Date, but after taking into account any
changes in the GreenPoint operations and businesses solely due to the
reallocation of branches of GreenPoint Bank or NorthFork Bank to the other
entity for valid business reasons), in each case, with such duties and
responsibilities as are commensurate and consistent with such title and position
and as are comparable with the duties and responsibilities of the Executive with
GreenPoint Bank immediately prior to the Effective Date, (B) report directly to
the Chief Executive Officer of the Company (the "CEO") and (C) serve on the
Board of Directors of the Company (the "Board").
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive agrees
to devote substantially all of his attention and time during normal business
hours to the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder, to use the
Executive's reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period, it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments, so long
as such activities do not significantly interfere
with the performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement. It is expressly understood and agreed
that to the extent that any such activities have been conducted by the Executive
prior to the Effective Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto) subsequent to the
Effective Date shall not thereafter be deemed to interfere with the performance
of the Executive's responsibilities to the Company.
(b) Compensation (i) Base Salary. During the Employment Period, the
Executive shall receive an annual base salary ("Annual Base Salary") at a rate
of not less than 95% of the annual base salary paid to the second highest paid
employee of the Company with respect to each fiscal year of the Company (the
"Peer Executive"), in accordance with the Company's normal payroll policies. The
Executive's Annual Base Salary shall be reviewed for increase at least annually
by the Board pursuant to its normal performance review policies for senior
executives. Any increase in Annual Base Salary shall not serve to limit or
reduce any other obligation to the Executive under this Agreement. Annual Base
Salary shall not be reduced after any increase and the term Annual Base Salary
as utilized in this Agreement shall refer to Annual Base Salary as so increased.
(ii) Annual Bonus. With respect to each fiscal year ending during the
Employment Period, the Executive shall be eligible to participate in the
Company's Annual Incentive Performance Compensation Plan or its successor plan
(the "Annual Bonus Plan"). The performance criteria (and the achievement
thereof) under the Annual Bonus Plan with respect to the Executive's annual
bonus in any such fiscal year shall be the same as those applicable to the Peer
Executive, and the Executive's annual bonus (the "Annual Bonus") with respect to
the achievement of such performance criteria shall be no less than 95% of the
annual bonus earned by the Peer Executive with respect to the achievement of
such performance criteria and shall be on terms and conditions no less favorable
than those applicable to the annual bonus of the Peer Executive.
(iii) Equity-Based Grants. With respect to each fiscal year during the
Employment Period, the Executive's equity-based awards shall be no less than 95%
of the value of those awarded to the Peer Executive with respect to the
applicable fiscal year and have terms and conditions no less favorable than
those applicable to the awards granted to the Peer Executive.
(iv) Retirement Benefits. During the Employment Period, the Executive
shall be entitled to participate in all savings and retirement plans that are
tax-qualified under Section 401(a) of the Internal Revenue Code of 1986, as
amended (the "Code"), and in all plans that are supplemental to any such
tax-qualified plans, in each case, to the extent that such plans are applicable
generally to other senior executives of the Company. Upon the Executive's
termination of employment for any reason (other than for Cause), whether or not
during the Employment Period, for the remainder of the Executive's life and that
of his current spouse, the Company shall provide medical, dental and life
insurance benefits (the "Retiree Welfare Benefits") to the Executive and his
current spouse on the same basis as such benefits were provided by GreenPoint to
its retirees as in effect immediately prior to the Effective Date and assuming
for this purpose that the Executive has no less than 15 years of credited
service. The Retiree Welfare Benefits provided hereunder shall commence
effective as of the later of (A) the
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Date of Termination and (B) the end of the benefits continuation period
under Section 5(a)(iii) of this Agreement, after taking into account for
purposes of clauses (A) and (B) hereof, with respect to medical and dental
benefits, any period during which the Executive and/or his spouse elect to
receive continued medical and/or dental benefits pursuant to their rights under
the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA").
(v) Other Employee Benefit Plans. During the Employment Period, the
Executive and/or the Executive's eligible dependents, as the case may be, shall
be eligible for participation in and shall receive all benefits under all
welfare benefit plans, practices, policies and programs provided by the Company
(including, without limitation, medical, prescription, dental, vision,
disability, salary continuance, group life and supplemental group life,
accidental death, travel accident insurance, sick leave and vacation plans,
practices, policies and programs), on the same basis as such plans, practices,
policies and programs are applicable or made available to the CEO and Peer
Executive. In addition, following the Effective Date, the Executive shall be
entitled to change in control benefits and protections (including a change in
control severance agreement) no less favorable than those provided to the CEO
and Peer Executive. During the Employment Period, the Executive shall be
provided with a car and driver and shall be eligible for such other fringe
benefits and perquisites (including, without limitation, expense reimbursement
plans, practices, policies and programs) as are provided to the CEO on a basis
no less favorable than such benefits are provided to the CEO.
(vi) Initial Payment. On the Effective Date, the Company shall make a
lump sum cash payment to the Executive equal to the sum of (A) the payments that
the Executive would have been entitled to receive pursuant to Sections
6(a)(i)(B) and (C) and Section 6(a)(iii) of the Employment Agreement between
GreenPoint and the Executive dated as of August 21, 1995, as amended (the "Prior
Agreement") had he been terminated by the Company other then for Cause
immediately after the Effective Date and (B) the amount equal to the present
value of the retirement benefits that the Executive would be entitled to receive
pursuant to Section 4(b)(viii) of the Prior Agreement assuming the Executive
retired on the Effective Date.
4. Termination of Employment. (a) Death or Disability. The Executive's
employment shall terminate automatically upon the Executive's death during the
Employment Period. If the Company determines in good faith that the Disability
of the Executive has occurred during the Employment Period (pursuant to the
definition of Disability set forth below), it may provide the Executive with
written notice in accordance with Section 11(b) of this Agreement of its
intention to terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the "Disability Effective
Date"), provided that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" shall mean the absence of the Executive
from the Executive's duties with the Company on a full-time basis for 180
consecutive business days as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to the Executive or the Executive's
legal representative.
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(b) Cause. The Company may terminate the Executive's employment during the
Employment Period either with or without Cause. For purposes of this Agreement,
"Cause" shall mean:
(i) the Executive is convicted of, or pleads guilty or nolo contendere
to a charge of commission of, a felony; or
(ii) the Executive has engaged in willful gross neglect or willful
gross misconduct in carrying out his duties, which results in material economic
harm to the Company or in reputational harm causing quantifiable material injury
to the Company.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the CEO or based upon the
advice of counsel for the Company shall be conclusively presumed to be done, or
omitted to be done, by the Executive in good faith and in the best interests of
the Company. The cessation of employment of the Executive shall not be deemed to
be for Cause unless and until there shall have been delivered to the Executive a
copy of a resolution duly adopted by the affirmative vote of not less than
two-thirds of the entire membership of the Board at a meeting of the Board
called and held for such purpose (after reasonable notice is provided to the
Executive and the Executive is given an opportunity, together with counsel, to
be heard before the Board), finding that, in the good faith opinion of the
Board, the Executive is guilty of the conduct described in clause (ii) above,
and specifying the particulars thereof in detail.
(c) Good Reason. The Executive's employment may be terminated by the
Executive with or without Good Reason. For purposes of this Agreement, "Good
Reason" shall mean in the absence of a written consent of the Executive:
(i) the assignment to the Executive of any duties inconsistent in any
respect with the Executive's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as contemplated
by Section 3(a) of this Agreement, or any other action by the Company which, in
the Executive's reasonable judgment, results in a diminution in such position,
authority, duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(ii) any failure by the Company to comply with any of the provisions
of Section 3(b) of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive;
(iii) any requirement by the Company that the Executive's services be
rendered primarily at a location or locations other than New York, New York;
(iv) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
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(v) any failure by the Company to comply with and satisfy Section
10(c) of this Agreement.
(d) Notice of Termination. Any termination by the Company for Cause, or by
the Executive for Good Reason, shall be communicated by Notice of Termination to
the other party hereto given in accordance with Section 11(b) of this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than thirty days after the
giving of such notice). The failure by the Executive or the Company to set forth
in the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of the Executive or
the Company, respectively, hereunder or preclude the Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the Executive's
employment is terminated by the Company for Cause, or by the Executive with or
wihtout Good Reason, the date of receipt of the Notice of Termination or any
later date specified therein within 30 days of such notice, as the case may be,
(ii) if the Executive's employment is terminated by the Company other than for
Cause or Disability, the Date of Termination shall be the date on which the
Company notifies the Executive of such termination and (iii) if the Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be.
5. Obligations of the Company upon Termination. (a) Good Reason; Other Than
for Cause, Death or Disability. If, during the Employment Period, the Company
shall terminate the Executive's employment other than for Cause, death or
Disability or the Executive shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the following
amounts:
A. the sum of (1) the Executive's Annual Base Salary and any accrued
vacation pay through the Date of Termination, (2) the Executive's Annual
Bonus for the fiscal year immediately preceding the fiscal year in which
the Date of Termination occurs if such bonus has been determined but not
paid as of the Date of Termination, (3) the product of (x) the highest
annual bonus earned by the Executive (including any amounts deferred) for
any of the three fiscal years prior to the Date of Termination (the
"Highest Annual Bonus") and (y) a fraction, the numerator of which is the
number of days in the fiscal year in which the Date of Termination occurs
through the Date of Termination, and the denominator of which is 365, and
(4) any compensation previously deferred by the Executive (together with
any accrued interest or earnings thereon), in each case, to the extent
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not theretofore paid (the sum of the amounts described in clauses (1)
through (4), shall be hereinafter referred to as the "Accrued
Obligations"); and
B. an amount equal to the product of (x) the sum of (I) the
Executive's Annual Base Salary and (II) the Highest Annual Bonus and (y)
the greater of (1) the number of months remaining from the Date of
Termination through June 30, 2008, divided by 12 and (2) two; and
(ii) any equity-based awards granted to the Executive shall vest
immediately, any stock options granted to the Executive shall be exercisable for
the longer of (1) any period specified in any award agreement or plan governing
such stock option and (2) the shorter of (x) five years after the Date of
Termination and (y) the remainder of their scheduled term; and
(iii) until the later of June 30, 2008 or two years after the Date of
Termination, the Company shall continue to provide medical and dental benefits
to the Executive and his eligible dependents on the same basis such benefits
were provided to the Executive immediately prior to the Date of Termination, and
thereafter, the Executive and his eligible dependents may exercise their rights
to continuation coverage under COBRA (the "Medical Benefits"); and
(iv) to the extent not theretofore paid or provided, the Company shall
timely pay or provide to the Executive any other amounts or benefits required to
be paid or provided or which the Executive is eligible to receive under any
plan, program, policy or practice or contract or agreement of the Company and
its affiliated companies through the Date of Termination (such other amounts and
benefits shall be hereinafter referred to as the "Other Benefits").
(b) Death. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits. In addition, any equity-based awards granted to
the Executive shall vest immediately, any stock options granted to the Executive
shall be exercisable for the longer of (i) any period specified in any award
agreement or plan governing such stock option and (ii) the shorter of (A) five
years after the Date of Termination and (B) the remainder of their scheduled
term. Accrued Obligations shall be paid to the Executive's estate or
beneficiary, as applicable, in a lump sum in cash within 30 days of the Date of
Termination. With respect to the provision of Other Benefits, the term Other
Benefits as utilized in this Section 5(b) shall include death benefits as in
effect on the date of the Executive's death with respect to the CEO of the
Company and his beneficiaries and the continued provision of the Medical
Benefits.
(c) Disability. If the Executive's employment is terminated by reason of
the Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of Accrued Obligations and the timely payment or provision of Other Benefits. In
addition, any equity-based awards granted to the Executive shall vest
immediately, any stock options granted to the Executive shall be
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exercisable for the longer of (i) any period specified in any award agreement or
plan governing such stock option and (ii) the shorter of (A) five years after
the Date of Termination and (B) the remainder of their scheduled term. Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
of the Date of Termination. With respect to the provision of Other Benefits, the
term Other Benefits as utilized in this Section 5(c) shall include, and the
Executive shall be entitled after the Disability Effective Date to receive,
disability and other benefits as in effect at any time thereafter generally with
respect to the CEO of the Company and the continued provision of Medical
Benefits.
(d) Cause; Other than for Good Reason. If the Executive's employment shall
be terminated for Cause or the Executive terminates his employment without Good
Reason during the Employment Period, this Agreement shall terminate without
further obligations to the Executive other than the obligation to pay to the
Executive (i) the Accrued Obligations through the Date of Termination (other
than the pro-rata bonus amount provided under Section 5(a)(i)(A)(3)) and (ii)
Other Benefits, in each case to the extent theretofore unpaid. Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
of the Date of Termination.
6. Non-exclusivity of Rights. Except as specifically provided, nothing in
this Agreement shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided by the Company
or any of its affiliated companies and for which the Executive may qualify, nor,
subject to Section 11(f), shall anything herein limit or otherwise affect such
rights as the Executive may have under any contract or agreement with the
Company or any of its affiliated companies. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive under any plan, policy,
practice or program of or any contract or agreement with the Company or any of
its affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
7. Full Settlement. The Company's obligation to make the payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action which the Company may have against the Executive or
others. In no event shall the Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement and, such amounts shall
not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay as incurred, to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably incur as a result of
any contest (regardless of the outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986, as amended (the "Code").
8. Certain Additional Payments by the Company. (a) Anything in this
Agreement to the contrary notwithstanding, in the event it shall be determined
that any payment or distribution by the Company to or for the benefit of the
Executive (whether paid or payable or
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distributed or distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this Section 8) (a "Payment") would be subject to the excise tax imposed
by Section 4999 of the Code or any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Executive of all taxes (including any interest or penalties imposed with respect
to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed upon
the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 8(c), all determinations required
to be made under this Section 8, including whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by
PricewaterhouseCoopers LLP or such other certified public accounting firm
reasonably acceptable to the Company as may be designated by the Executive (the
"Accounting Firm") which shall provide detailed supporting calculations both to
the Company and the Executive within 15 business days of the receipt of notice
from the Executive that there has been a Payment, or such earlier time as is
requested by the Company. All fees and expenses of the Accounting Firm shall be
borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Section 8, shall be paid by the Company to the Executive within five days
of the later of (i) the due date for the payment of any Excise Tax, and (ii) the
receipt of the Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive. As a result
of the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made ("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 8(c) and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Company notifies the Executive in writing prior to the expiration of such
period that it desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
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(ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order effectively to
contest such claim, and
(iv) permit the Company to participate in any proceedings relating to
such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 8(c), the Company shall control all proceedings taken in connection
with such contest, and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either pay the
tax claimed to the appropriate taxing authority on behalf of the Executive and
direct the Executive to xxx for a refund or contest the claim in any permissible
manner, and the Executive agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as the Company shall determine; provided, however,
that, if the Company pays such claim and directs the Executive to xxx for a
refund, the Company shall indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such payment or with
respect to any imputed income in connection with such payment; and provided,
further, that any extension of the statute of limitations relating to payment of
taxes for the taxable year of the Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of the contest shall be limited to issues
with respect to which the Gross-Up Payment would be payable hereunder, and the
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of a payment by the Company of
an amount on the Executive's behalf pursuant to Section 8(c), the Executive
becomes entitled to receive any refund with respect to such claim, the Executive
shall (subject to the Company's complying with the requirements of Section 8(c))
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after
payment by the Company of an amount on the Executive's behalf pursuant to
Section 8(c), a determination is made that the Executive shall not be entitled
to any refund with respect to such claim and the Company does not notify the
Executive in writing of its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then the amount of such payment
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid.
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9. Confidential Information. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated companies,
and their respective businesses, which shall have been obtained by the Executive
during the Executive's employment by the Company or any of its affiliated
companies and which shall not be or become public knowledge (other than by acts
by the Executive or representatives of the Executive in violation of this
Agreement). After termination of the Executive's employment with the Company,
the Executive shall not, without the prior written consent of the Company or as
may otherwise be required by law or legal process, communicate or divulge any
such information, knowledge or data to anyone other than the Company and those
designated by it.
10. Successors. (a) This Agreement is personal to the Executive and without
the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
(c) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise. As used in this
Agreement, the term "affiliated companies" shall include any company controlled
by, controlling or under common control with the Company.
11. Miscellaneous. (a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing and
shall be given by hand delivery to the other party or by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive: At the most recent address
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on file at the Company.
If to the Company: North Fork Bancorporation, Inc.
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000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx, 00000
Attention: General Counsel
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or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
(d) The Company may withhold from any amounts payable under this Agreement
such Federal, state, local or foreign taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 4(c)(i)-(v) of this Agreement, shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement.
(f) Except as otherwise expressly provided herein, from and after the
Effective Date, this Agreement shall supersede any other employment, severance
or change of control agreement between the Executive and GreenPoint, with
respect to the subject matter hereof, including without limitation, the Prior
Agreement which shall be of no further force and effect upon payment of the
obligations set forth in Section 3(b)(vi) hereof. Any provision of this
Agreement that by its terms continues after the expiration of the Employment
Period or the termination of the Executive's employment shall survive in
accordance with its terms.
(g) This Agreement may be executed in counterparts, which together shall
constitute one and the same original.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
NORTH FORK BANCORPORATION, INC.
By /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
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