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AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement is entered into as of
the 18th day of May, 2000, between THE DIME SAVINGS BANK OF NEW YORK, FSB (the
"Bank"), a federal stock savings bank having its principal executive offices at
589 Fifth Avenue, New York, New York 10017, and Richard A. Mirro (the
"Officer").
A. The parties hereto have previously entered into an Employment
Agreement dated as of December 21, 1998 (the "Employment Agreement").
B. The Employment Agreement is currently a Covered Arrangement
under the Umbrella Trust Agreement among Dime Bancorp, Inc., The Dime Savings
Bank of New York, FSB and HSBC Bank USA as Trustee with respect to the Covered
Arrangements of The Dime Savings Bank of New York, FSB and Related Entities (the
"Umbrella Trust").
C. The Bank and the Officer are desirous of amending the
Employment Agreement to reflect the greater authority of the Committee under the
Umbrella Trust in interpreting the provisions of the Employment Agreement, to
clarify that any severance benefits provided under the Employment Agreement are
in lieu of benefits provided under any other severance program maintained by
NAMCO, and to add severance benefits relating to a Change in Control of North
American Mortgage Company ("NAMCO").
D. The following provision is added to the end of the Employment
Agreement:
"Notwithstanding anything to the contrary contained
herein, the Committee under the Umbrella Trust Agreement
among Dime Bancorp, Inc., The Dime Savings Bank of
New York, FSB
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and HSBC Bank USA, as Trustee with respect to the Covered
Arrangements of The Dime Savings Bank of New York, FSB and
Related Entities (the "Umbrella Trust" and the "Umbrella
Trust Committee") and the trustee of the Umbrella Trust (the
"Trustee") shall have the authority to interpret, on behalf
of the Bank (and as applicable, the Company), the provisions
of this Employment Agreement to the extent that interpretive
authority is provided to the Umbrella Trust Committee and/or
the Trustee, as applicable, under the Umbrella Trust. The
decisions of the Umbrella Trust Committee, the Trustee and
their delegatee(s) shall govern the Bank's interpretation of
this Employment Agreement and any amendments thereto,
notwithstanding any authority otherwise provided to another
individual, group of individuals or entity herein, including,
but not limited to, the authority to determine the
eligibility for, amount, form and timing of payments
hereunder, and the calculation of 'excess parachute payments'
and the underlying elements used in their determination under
Code Section 280G.
The severance benefits specified in Section 8 and Section 11
hereof shall be in lieu of any severance pay or other
severance benefit that the Employer may provide to terminated
employees pursuant to policies of the Employer that may at
that time be in effect."
E. The fourth textual sentence of Section 6(b) of the Agreement
is amended to provide as follows:
"In the event of a termination of the Officer's employment
for "permanent disability" at any time during the remaining
Term in effect at the time of a Change in Control or a NAMCO
Transfer of Control, the provisions of Section 11 shall apply
in lieu of the provisions of this Section 6(b)."
F. The third textual sentence of Section 8(a) of the Agreement
is amended to provide as follows:
"In the event of a termination of the Officer's employment by
the Employer at any time during the remaining Term in effect
at the time of a Change in Control or a NAMCO Transfer of
Control, the
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provisions of Section 11 shall apply in lieu of the
provisions of the immediately preceding sentence of this
Section 8(a)."
G. Subsections 8(c), (d), (e) and (f) of the Employment
Agreement, and all references thereto, are relabelled as Subsections 8(d), (e),
(f) and (g) respectively, and a new subsection (c) shall be added to Section 8
of the Employment Agreement following subsection 8(b) as follows:
"(c) In the event of the termination of the Officer's
employment under this Agreement by the Bank, other than a
termination for cause (as defined in Section 8(b)), during
the Initial Severance Period (as hereinafter defined), the
Bank shall pay the Officer, in lieu of the salary and target
bonus benefits provided for in clause (1) of the second
sentence of Section 8(a) above, severance benefits under this
Section 8(c), but only if the severance benefits provided for
under clauses (i) and (ii) of the second sentence of this
Section 8(c) are greater than the total benefits provided for
under such clause (1) of the second sentence of Section 8(a).
The severance benefits provided under this Section 8(c) shall
be paid as a lump sum equal to (i) the total amount of salary
payments that would be paid to the Officer if the Officer
were continued to be paid the Officer's annual salary in
effect immediately prior to the Effective Date of Termination
until the end of the Term in effect on the Effective Date of
Termination, plus (ii) the sum of (A) the target incentive
bonus for the calendar year of the Effective Date of
Termination determined as if the Officer had continued
employment with the Bank through the end of such year, and
(B) for each subsequent year of the Term in effect on the
Effective Date of Termination, an amount equal to the target
incentive bonus for the calendar year of the Effective Date
of Termination, with the amount calculated with respect to
the last calendar year of the Term pro-rated to reflect an
amount related to the portion of the year up to the last day
of the Term. If severance benefits are paid pursuant to this
Section 8(c) in lieu of the payments provided under clause
(1) of the second sentence of Section 8(a), the Officer (and,
as applicable, the Officer's spouse and dependents) shall
remain entitled to continuation of welfare benefits under
clause (2) of the second sentence of Section 8(a), except
that such benefits shall continue for the remainder of the
Term in effect on the Effective Date of Termination. In the
event
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of a termination of the Officer's employment by the Bank upon
or after a NAMCO Transfer of Control or a Change in Control
during the Initial Severance Period, the provisions of
Section 11 shall apply in lieu of the preceding provisions of
this Section 8(c). The term 'Initial Severance Period' shall
mean the period commencing on May 18, 2000 and ending on
March 1, 2003 or such later date as the Bank may specify in
writing."
H. The following new subsections (j), (k) and (l) shall be added
to the end of Section 11 of the Employment Agreement:
"(j)(i) If a NAMCO Transfer of Control (as defined in
paragraph (k) of this Section 11) shall occur (but no Change
in Control has otherwise occurred), the Officer shall be
entitled to the compensation and benefits described in clause
(B) of paragraph (d)(i) of this Section 11, as well as the
benefits described in paragraphs (f) and (h) of this Section
11 upon the subsequent termination of the Officer's
employment, at any time during the remaining Term in effect
at the time of the NAMCO Transfer of Control, by the Bank,
other than a termination for cause or a termination
occasioned by the non-renewal of this Agreement as described
in Section 11(c)(v), as if the NAMCO Transfer of Control
constituted a Change in Control hereunder.
(ii) If a NAMCO Transfer of Control shall occur (but no
Change in Control has otherwise occurred), and thereafter the
Employee experiences a Material Change (as defined in
paragraph (c)(iii) of this Section 11), the Officer shall be
entitled to compensation and benefits described in clause (B)
of paragraph (d)(i) of this Section 11, as well as the
benefits described in paragraphs (f) and (h) of this Section
11 upon the subsequent termination of the Officer's
employment, at any time during the remaining Term in effect
at the time of the NAMCO Transfer in Control, by the Officer,
as if the NAMCO Transfer of Control constituted a Change in
Control hereunder.
(iii) Only for purposes of determining whether there has
been a termination of the Officer's employment during the
remaining Term in effect at the time of a NAMCO Transfer of
Control (as specified in paragraphs (j)(i) and (j)(ii) of
this Section
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11, as the case may be) so as to entitle the Officer to the
compensation and benefits described in clause (B) of
paragraph (d)(i) of this Section 11, as well as the benefits
described in paragraph (f) of this Section 11, a termination
of the Officer's employment following such a NAMCO Transfer
of Control shall be deemed to have occurred on such date
during the remaining Term that a notice of termination is
given by the Bank or the Officer to the other (regardless of
the Effective Date of Termination specified in such notice).
Notwithstanding the foregoing, the Officer shall continue to
be employed by the Bank pursuant to this Agreement until the
Effective Date of Termination specified in the notice of
termination.
(k) As used in this Agreement, "NAMCO Transfer of Control"
shall be deemed to have occurred if the event set forth in
any one of the following paragraphs shall have occurred:
(I) there is consummated any transaction or series of
related transactions as a result of which, immediately
following the completion of such transaction or series of
related transactions, more than 50% of the combined voting
power of the voting securities of North American Mortgage
Company ("NAMCO") (or of any entity which, after a merger,
consolidation or corporate reorganization holds all or
substantially all of the assets of NAMCO) are held directly
or indirectly by one or more Persons other than (i) the
Company, the Bank or any direct or indirect subsidiary
thereof; (ii) stockholders of the Company who hold such
securities in substantially the same proportions as their
ownership of the voting securities of the Company immediately
prior to such transaction or series of transactions; (iii)
any Person employed by the Company, the Bank or any Affiliate
thereof (including NAMCO) immediately prior to commencement
of such transaction or series of transactions or any Person
of which more than 50% of the combined voting power of the
voting securities are owned by one or more persons who are so
employed; and (iv) any trustee or other fiduciary holding
securities under an employment benefit plan of the Company,
the Bank or any Affiliate thereof (including NAMCO); or
(II) the stockholder of NAMCO approves a plan of complete
liquidation or dissolution of NAMCO or there is consummated
the sale or disposition by NAMCO or any of its
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subsidiaries of any assets which individually or as part of a
series of related transactions constitute all or
substantially all of NAMCO's consolidated assets (provided
that, for these purposes, a sale of voting securities of
NAMCO or other transaction of the nature described in clause
I of this paragraph (k) shall not be deemed to constitute a
sale of substantially all of NAMCO's consolidated assets),
other than such sale or disposition to an entity at least 50%
of the combined voting power of the voting securities of
which are owned by Persons referred to in subclauses (i)
through (iv), inclusive, of clause I of this paragraph (k);
or
(III) the execution of a binding agreement that if
consummated would result in a NAMCO Transfer of Control of a
type specified in clause (I) of this paragraph (k) (an
"Acquisition Agreement") or of a binding agreement for the
sale or disposition of assets that, if consummated , would
result in a NAMCO Transfer of Control of a type specified in
clause (II) of this paragraph (k) (an "Asset Sale Agreement")
or the adoption by the stockholder or Board of Directors of
NAMCO of a plan of complete liquidation or dissolution of
NAMCO that, if consummated, would result in a NAMCO Transfer
of Control of a type specified in clause (II) of this
paragraph (k) (a "Plan of Liquidation"), provided, however,
that a NAMCO Transfer of Control of the type specified in
this clause (III) shall not be deemed to exist or have
occurred as a result of the execution of such Acquisition
Agreement or Asset Sale Agreement, or the adoption of such a
Plan of Liquidation, from and after the Abandonment Date if
the Officer's employment has not been terminated on or prior
to the Abandonment Date. As used in this paragraph (k), the
term "Abandonment Date" shall mean the date on which (A) an
Acquisition Agreement, Asset Sale Agreement or Plan of
Liquidation is terminated (pursuant to its terms or
otherwise) without having been consummated, (B) the parties
to an Acquisition Agreement or Asset Sale Agreement abandon
the transactions contemplated thereby, (C) NAMCO abandons a
Plan of Liquidation or (D) a court or regulatory body having
competent jurisdiction enjoins or issues a cease and desist
or stop order with respect to or otherwise prevents the
consummation of, or a regulatory body notifies NAMCO that it
will not approve, an Acquisition Agreement, Asset Sale
Agreement or Plan of Liquidation or the transactions
contemplated thereby and such injunction, order or notice has
become final and not subject to appeal.
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As used in connection with the foregoing definition of
NAMCO Transfer of Control, "Affiliate" shall have the meaning
set forth in Rule 12b-2 promulgated under Section 12 of the
Exchange Act; "Beneficial Owner" shall have the meaning set
forth in Rule 13d-3 under the Exchange Act; "Exchange Act"
shall mean the Securities Exchange Act of 1934, as amended
from time to time; and "Person" shall have the meaning given
in Section 3(a)(9) of the Exchange Act, as modified and used
in Sections 13(d) and 14(d) thereof, except that such term
shall not include (i) the Company or any of its subsidiaries,
(ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its
Affiliates, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities, or
(iv) a corporation or entity in which any interests is owned,
directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of
stock of the Company.
(l) Notwithstanding the foregoing, the Officer will not be
entitled to any of the benefits provided in Sections 8 or 11
if, in connection with any termination of employment
occasioned directly by the sale of assets or voting
securities of NAMCO, the Officer accepts an offer of ongoing
employment with the acquiror of such assets or voting
securities or an affiliate thereof (without a material
diminution in duties or salary), whereby the Officer need not
experience any material period of unemployment."
I. Section 8(d)(ii) of the Employment Agreement (as relabelled)
is deleted in its entirety and in its place is inserted the following:
"(ii) Notwithstanding any other provision of this Section
8 or of Section 11, in the event that any amount otherwise
payable hereunder, other than on account of events described
in Sections 11(c)(i), 11(c)(ii), 11(c)(iii), 11(j)(i) or
11(j)(ii) following a Change in Control or NAMCO Transfer of
Control (as hereinafter defined), would be deemed to
constitute a parachute payment (a "Parachute Payment") within
the meaning of Section 280G of the Code, and if any such
Parachute Payment, when added to any other payments which are
deemed to constitute Parachute Payments, would otherwise
result in the imposition of an excise tax under Section 4999
of the Code, the amounts payable thereunder (other than
amounts payable under the SERP or otherwise on account of
events described in Sections 11(c)(i), 11(c)(ii), 11(c)(iii),
11(j)(i) or
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11(j)(ii) following a Change in Control or NAMCO Transfer of
Control) shall be reduced by the smallest amount necessary to
avoid the imposition of such excise tax. Any such limitation
shall be applied to such compensation and benefit amounts,
and in such order, as the Bank shall determine in its sole
discretion. References to the Code in this Agreement shall be
to the Code as presently in effect or to the corresponding
provisions of any succeeding law."
THE DIME SAVINGS BANK OF NEW
YORK, FSB
By:_____________________________
Name:
Title:
________________________________
Richard A. Mirro
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