Exhibit 10.6
CONSULTING AGREEMENT
CONSULTING AGREEMENT dated as of this 27th day of June, 2000, between
Queens County Bancorp, a corporation organized under the laws of Delaware, with
its principal administrative office at 38-25 Main Street, Flushing, New York
("Queens"), and Columbia Federal Savings Bank, now known as CFS Bank ("CFS
Bank"), a federally chartered savings bank, with its principal administrative
office at 615 Merrick Avenue, Westbury, NY 11590, and Philip S. Messina (the
"Consultant").
WHEREAS, Consultant is currently employed as Chairman and Chief
Executive Officer of Haven Bancorp, Inc., a corporation organized under the laws
of Delaware, which is the principal holding company for CFS Bank ("Haven");
WHEREAS, Consultant is currently employed as Chairman and Chief
Executive Officer of CFS Bank;
WHEREAS, Haven has entered into an Agreement and Plan of Merger (the
"Merger Agreement") with Queens County Bancorp, Inc. ("Queens"), dated as of
even date herewith, pursuant to which Haven will merge with and into Queens (the
"Merger") with Queens being the surviving corporation; and
WHEREAS, upon the terms and subject to the conditions set forth in this
Agreement, Queens desires that Consultant continue to provide consulting
services to Queens and CFS Bank after the "Effective Time" as such term is
defined in the Merger Agreement and Consultant desires to continue to perform
such services;
NOW, THEREFORE, in consideration of the foregoing and the mutual
commitments contained in this Agreement, the parties hereto agree as follows:
1. Consulting Period; Effect on Prior Employment Agreement
This Agreement shall be effective as of the Effective Time, provided
Consultant is employed by CFS Bank on that date and shall continue for a period
of three (3) years thereafter, subject to earlier termination as provided
herein. The period during which Consultant is providing services hereunder is
hereafter referred to as the "Consulting Period". As of the Effective Time, the
Employment Agreement between Consultant and Haven dated November 22, 1999 (the
"Employment Agreement"), shall terminate and become null and void; provided that
Section 7 only of the Employment Agreement shall survive until the end of the
Consulting Period and shall be deemed to cover any services provided under this
Agreement. In consideration of the services rendered by the Consultant to Haven
and CFS Bank prior to the Effective Time, the Consultant's
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willingness to enter into this Agreement, and the satisfaction of all of Haven's
obligations under the Employment Agreement, the Company shall pay the Consultant
in cash the amount calculated and payable under Section 11 of the Employment
Agreement at the Effective Time; provided that such payment shall not include
any amounts provided to Consultant under Section 15 or any other provision of
the Employment Agreement for tax indemnification for excise taxes imposed under
Section 4999 of the Internal Revenue Code of 1986, as amended.
2. Duties and Services
(a) Commencing on the Effective Date, Consultant is engaged to act
as a general consultant to Queens and to CFS Bank with respect to CFS Bank's
business (the "Business"). Consultant shall perform services for Queens or CFS
Bank as are reasonably requested by the Board of Directors of Queens, and such
services shall include, but not be limited to, assisting CFS Bank in
establishing, promoting and maintaining good business relationships and
developing the Business.
(b) Queens, CFS Bank and Consultant shall make good faith attempts
to schedule any consulting services so as not to interfere unreasonably with
Consultant's other business activities. It is understood that Consultant shall
be an independent contractor and not an employee who may be engaged in
employment for other persons and who may render other consulting services during
the period of this Consulting Agreement, subject to the limitations of Section 6
hereof.
(c) Consultant shall be responsible for the payment of applicable
taxes levied or based upon the income of Consultant or the fees payable to
Consultant by CFS Bank including, but not limited to, SECA and federal, state
and local income taxes.
3. Compensation; Use of Office; Car
(a) As compensation for his services hereunder, Queens and CFS
Bank shall pay Consultant, during the Consulting Period, a consulting fee (the
"Consulting Fee") at the rate of $500,000 per year, payable in monthly
installments commencing at the Effective Time. Consultant acknowledges that as
an independent contractor he is not entitled to participate in or receive any
benefit or right offered to employees of CFS Bank under any employee benefit
plan, including without limitation, medical and health insurance.
(b) Queens and CFS Bank shall provide Consultant at its expense
with an office located on the premises of CFS Bank, use of a secretary and a
computer if such are necessary to enable Consultant to perform his duties
hereunder.
(c) Consultant shall receive the use of a car leased by Queens or
CFS Bank during the Consulting Period, such car to be of similar value as that
leased by Haven or CFS Bank for
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Consultant's use as of the date hereof. Queens or CFS Bank shall also pay all
costs of car insurance, repairs, maintenance, fuel and parking for such car.
4. Expenses
Consultant shall be entitled to reimbursement for all reasonable
out-of-pocket expenses necessarily incurred in the performance of his duties for
Queens or CFS Bank hereunder, upon submission and approval of written statements
and bills in accordance with the then regular procedures of CFS Bank.
5. Confidential Information; Covenant not to Compete
(a) Consultant agrees that during the Consulting Period and for a
period of three years following termination of Consultant's services to Queens
and CFS Bank, Consultant shall keep secret and confidential all business-related
information about CFS Bank, Queens and its subsidiaries, including without
limitation, information about business contacts, transactions, contracts,
intellectual property, finances, personnel, products and pricing, customers, or
corporate affairs of which Consultant may become aware, whether or not relating
to or arising out of Consultant's specific duties ("Confidential Information")
and Consultant shall not disclose or make known any of such Confidential
Information or anything relating thereto to any person, firm or corporation
except to officers, directors, employees, agents and advisors of CFS Bank,
Queens and its subsidiaries and such other persons or entities as may be
authorized by Queens or CFS Bank.
(b) Upon termination of this Agreement, Consultant shall
immediately return to Queens or CFS Bank any and all Confidential Information in
his possession or under his control, including, without limitation, all reports,
analyses, summaries, notes, or other documents or work papers, containing or
based upon any Confidential Information, whether prepared by CFS Bank, Queens or
any of its subsidiaries, Consultant or any other person or entity.
(c) Should any person request in any manner that Consultant
disclose any Confidential Information, Consultant shall immediately notify
Queens and CFS Bank of such request and the content of all communications and
discussions relating thereto.
(d) Consultant agrees that during the Consulting Period,
Consultant will
(i) not, directly or indirectly (whether as principal, agent,
independent contractor, employee or otherwise), own, manage, operate,
join, control or otherwise carry on, participate in the ownership,
management, operation or control of, or be engaged in or concerned
with, any business competitive with that of Queens or CFS Bank,
provided that the Consultant shall not be prohibited from owning less
than 5% of any publicly traded corporation, whether or not such
corporation is in competition with Queens or CFS Bank;
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(ii) inform any person which seeks to engage the services of
Consultant that Consultant is bound by this Section 5 and the other
terms of this Agreement;
(iii) not solicit or induce or attempt to solicit or induce,
directly or indirectly, any employee of Queens or CFS Bank, whether or
not such person would commit a breach of any employment agreement by
reason of leaving service, to terminate such employee's employment
relationship with Queens or CFS Bank in order to enter into any such
relationship with him or any person in competition with the business
of Queens or CFS Bank.
(e) Consultant understands and agrees that money damages may not
be a sufficient remedy for any breach or attempted or threatened breach of this
Section 5 by Consultant and that CFS Bank, Queens and its subsidiaries shall be
entitled to equitable relief, including specific performance and injunctive
relief as remedies for any such breach or threatened or attempted breach.
Consultant hereby consents to the granting of an injunction (temporary or
otherwise) against Consultant or to the entering of any other court order
against Consultant prohibiting and enjoining Consultant from violating, or
directing Consultant to comply with, any provision of this Section 5. Consultant
also agrees and understands that such remedies shall be in addition to any and
all remedies, including damages, available to CFS Bank, Queens or its
subsidiaries against Consultant for such breaches or threatened or attempted
breaches.
(f) The provisions of this Section 5 shall survive any termination
or expiration of this Agreement.
6. Termination
(a) Queens or CFS Bank may terminate this Agreement for "Cause"
(as defined in paragraph (c) below) at any time and in such event, its only
obligation will be to pay Consultant in a lump sum any accrued but unpaid
Consulting Fee due to Consultant through the last day Consultant performs
services on behalf of Queens or CFS Bank.
(b) Queens or CFS Bank may terminate this Agreement without Cause
upon providing 30 days' prior written notice to Consultant. In the event Queens
or CFS Bank terminates this Agreement without Cause, Queens or CFS Bank shall
pay in a lump sum the remaining Consulting Fee owed through the end of the
Consulting Period as provided in Section 1 hereof.
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(c) As used herein
(i) "Cause" shall mean (A) a determination by the Board of
Directors of Queens of willful failure of Consultant to perform his
duties under this Agreement after notice and a reasonable opportunity
to cure, (B) acts or omissions resulting or intended to result in
personal gain at the expense of CFS Bank, Queens or its subsidiaries
except as provided under this Agreement, (C) acts or omissions causing
material injury to the property and business of CFS Bank, Queens or
its subsidiaries, or (D) the conviction of Consultant, or the entry of
a plea of guilty or nolo contendere by Consultant to any felony.
(ii) "Disability" shall mean Consultant's inability, for reasons
of health, to carry out his services under this Agreement for a total
of six months during any 12 month period of this Agreement.
(d) In the event of the Consultant's death, Queens or CFS Bank
shall be entitled to terminate this Agreement, in which case Queens' and CFS
Bank's obligations under this Agreement shall be limited to the payment of in a
lump sum the Consulting Fee owed through the end of the Consulting Period as
provided in Section 1 hereof.
(e) Queens or CFS Bank may terminate this Agreement for
"Disability" (as defined in paragraph (c)) upon 30 days' prior written notice.
In such event Queens' and CFS Bank's only obligation under this Agreement shall
be to pay Consultant in a lump sum the Consulting Fee owed through the end of
the Consulting Period as provided in Section 1 hereof.
7. No Advertising or Promotion
Consultant agrees that he will not use, in any advertising or
promotional material or media, the name or logo of CFS Bank, Queens or any other
Queens entity, or otherwise identify Queens or any other Queens entity as a
client of Consultant, without Queens's prior written consent.
8. Survival
The covenants, agreements, representations, and warranties contained in
or made pursuant to this Agreement shall survive termination of Consultant's
services as provided herein.
9. Entire Agreement; Modification
This Agreement contains the entire agreement between Consultant, Queens
and CFS Bank and it is the complete, final and exclusive embodiment of our
agreement with regard to this subject matter. It is entered into without
reliance on any promise or representation other than those expressly contained
herein, and it cannot be amended except in writing signed by both parties.
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In case any one or more of the provisions contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect the
other provisions of this Agreement, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein. If, moreover, any one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to duration,
geographical scope, activity or subject, it shall be construed by limiting and
reducing it, so as to be enforceable to the extent compatible with the
applicable law as it shall then appear.
10. Notices
For purposes of this Agreement, all notices and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered or five (5) days after deposit in the United
States mail, certified and return receipt requested, postage prepaid, to such
address as either party may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be effective only upon
receipt.
11. Waiver
If either party should waive any breach of any provisions of this
Agreement, he or it shall not thereby be deemed to have waived any preceding or
succeeding breach of the same or any other provision of this Agreement.
12. Assignment
This Agreement and any rights or obligations hereunder may be assigned
by Queens' or CFS Bank to any successor in interest to Queens' or CFS Bank's
business. This Agreement may not be assigned by Consultant.
13. Headings
The headings of the sections hereof are inserted for convenience only
and shall not be deemed to constitute a part hereof nor to affect the meaning
thereof.
14. Governing Law
This Agreement shall be governed by the laws of the State of New York.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
QUEENS COUNTY BANCORP
By: /s/ Joseph R. Ficalora
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COLUMBIA FEDERAL SAVINGS BANK
By: s/s/ William J. Jennings
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CONSULTANT
/s/ Philip S. Messina
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Philip S. Messina
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