EXHIBIT 10.3(d)
Amended and Restated Employment Agreement between Flushing Financial Corporation
and Certain Officers.
FLUSHING FINANCIAL CORPORATION
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement")
is made and entered into as of the 18th day of July, 2000, by and between
Flushing Financial Corporation, a Delaware corporation having its executive
offices at 144-51 Northern Boulevard, Flushing, New York 11354 (the "Holding
Company"), and ________________________________________________________ residing
____________________________________________ ("Officer").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Holding Company and the Officer are parties to an
Employment Agreement dated as of July 20, 1999; and
WHEREAS, the Holding Company considers the availability of the
Officer's services to be important to the successful management and conduct of
the Holding Company's business and desires to secure for itself the continued
availability of his services; and
WHEREAS, for purposes of securing for the Holding Company the
Officer's continued services, the Board of Directors of the Holding Company
("Board") has authorized the proper officers of the Holding Company to enter
into an amended and restated employment agreement with the Officer on the terms
and conditions set forth herein; and
WHEREAS, the Officer is willing to make his services available
to the Holding Company on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and obligations hereinafter set forth, the Holding Company and
the Officer hereby agree as follows:
Section 1. Employment.
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The Holding Company hereby agrees to employ the Officer, and
the Officer hereby agrees to accept such employment, during the period and upon
the terms and conditions set forth in this Agreement.
Section 2. Employment Period.
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(a) Except as otherwise provided in this Agreement to the
contrary, the terms and conditions of this Agreement shall be and remain in
effect during the period of employment ("Employment Period") established under
this section 2. The Employment Period under this Amended and Restated Employment
Agreement shall be for a term commencing on July 18, 2000 and ending on November
21, 2002, plus such extensions as are provided pursuant to section 2(b) of this
Agreement.
(b) On or as of July 1, 2001, and on or as of each July 1
thereafter, the Employment Period shall be extended for one additional year if
and only if the Board shall have authorized the extension of the Employment
Period prior to July 1 of such year and the Officer shall not have notified the
Holding Company prior to July 1 of such year that the Employment Period shall
not be so extended. If the Board shall not have authorized the extension of the
Employment Period prior to July 1 of any such year, or if the Officer shall have
given notice of nonextension to the Holding Company prior to July 1 of such
year, then the Employment Period shall not be extended pursuant to this section
2(b) at any time thereafter and shall end on the last day of its term as then in
effect.
(c) Upon the termination of the Officer's employment with the
Holding Company, the extensions provided pursuant to section 2(b) shall cease
(if such extensions have not previously ceased).
Section 3. Title and Duties.
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On the date on which the Employment Period commences, the
Officer shall hold the position of Senior Vice President of the Holding Company
with all of the powers and duties incident to such position under law and under
the by-laws of the Holding Company. During the Employment Period, the Officer
shall: (a) devote his full business time and attention (other than during
weekends, holidays, vacation periods and periods of illness or approved leaves
of absence) to the business and affairs of the Holding Company and its
subsidiaries and use his best efforts to advance the interests of the Holding
Company and its subsidiaries, including reasonable periods of service as an
officer and/or board member of trade associations, their related entities and
charitable organizations; and (b) perform such reasonable additional duties as
may be assigned to him by or under the authority of the Board. The Officer shall
also serve as an officer of Flushing Savings Bank, FSB (the "Bank") pursuant to
the Amended and Restated Employment Agreement between the Officer and the Bank
dated as of the date hereof ("Bank Employment Agreement"). The Holding Company
hereby acknowledges that the Officer's service under this Agreement shall not be
deemed to materially interfere with the Officer's performance under the Bank
Employment Agreement or otherwise result in a breach of the Bank Employment
Agreement. The Officer shall have such authority as is necessary or appropriate
to carry out his duties under this Agreement.
Section 4. Compensation.
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In consideration for services rendered by the Officer under
this Agreement:
(a) The Holding Company shall pay to the Officer a salary at
an annual rate equal to the greater of (i) $_________ or (ii) such higher annual
rate as may be prescribed by or under the authority of the Board (the "Current
Salary"). The Officer will undergo an annual salary and performance review on or
about June 30 of each year commencing in 2001. The Current Salary payable under
this section 4 shall be paid in approximately equal installments in accordance
with the Holding Company's customary payroll practices.
(b) The Officer shall be eligible to participate in any bonus
plan maintained by the Holding Company for its officers and employees. If the
Officer shall earn any bonus under any bonus plan of the Bank but such bonus
shall not be paid by the Bank, the Holding Company shall pay such bonus to the
Officer.
Section 5. Employee Benefits and Other Compensation.
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(a) Except as otherwise provided in this Agreement, the
Officer shall, during the Employment Period, be treated as an employee of the
Holding Company and be entitled to participate in and receive benefits under the
Holding Company's employee benefit plans and programs, as well as such other
compensation plans or programs (whether or not employee benefit plans or
programs), as the Holding Company may maintain from time to time, in accordance
with the terms and conditions of such employee benefit plans and programs and
compensation plans and programs and with the Holding Company's customary
practices.
(b) The Holding Company shall provide the Officer with a
suitable automobile for use in the performance of the Officer's duties hereunder
and shall reimburse the Officer for all expenses incurred in connection
therewith.
(c) The Officer shall be entitled, without loss of pay, to
vacation time in accordance with the policies periodically established by the
Board for senior management officials of the Holding Company, which shall in no
event be less than three weeks in each calendar year. Except as provided in
section 7(b), the Officer shall not be entitled to receive any additional
compensation from the Holding Company on account of his failure to take a
vacation, nor shall he be entitled to accumulate unused vacation from one
calendar year to the next except to the extent authorized by the Board for
senior management officials of the Holding Company.
Section 6. Working Facilities and Expenses.
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The Officer's principal place of employment shall be at the
offices of the Holding Company in Queens County, New York or at such other
location upon which the Holding Company and the Officer may mutually agree. The
Holding Company shall provide the Officer, at his principal place of employment,
with a private office, stenographic services and other support services and
facilities consistent with his position with the Holding Company and necessary
or appropriate in connection with the performance of his duties under this
Agreement. The Holding Company shall reimburse the Officer for his ordinary and
necessary business expenses, including, without limitation, travel and
entertainment expenses, incurred in connection with the performance of his
duties under this Agreement, upon presentation to the Holding Company of an
itemized account of such expenses in such form as the Holding Company may
reasonably require.
Section 7. Termination with Holding Company Liability.
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(a) In the event that the Officer's employment with the Bank
and/or the Holding Company shall terminate during the Employment Period on
account of:
(i) the Officer's voluntary resignation from
employment with the Bank and the Holding Company within one year
following an event that constitutes "Good Reason," which is defined as:
(A) the failure of the Bank to elect or to
reelect the Officer to serve as its Senior Vice
President, or such other position as the Officer consents to
hold, or the failure of the Holding Company to elect or
reelect the Officer to serve as its Senior Vice President, or
such other position as the Officer consents to hold;
(B) the failure of the Bank or the Holding
Company to cure a material adverse change made by it in the
Officer's functions, duties, or responsibilities in his
position with the Bank or the Holding Company, respectively,
within sixty days following written notice thereof from the
Officer;
(C) the failure of the Bank or the Holding
Company to maintain the Officer's principal place of
employment at its offices in Queens County, New York or at
such other location upon which the Bank or the Holding Company
and the Officer may mutually agree;
(D) the failure of the Board to extend the
Employment Period within the times provided in section 2(b) or
the failure of the Bank's board of directors to extend the
Employment Period under the Bank Employment Agreement within
the times provided in section 2(b) of such Agreement;
provided, however, that such failure shall not constitute Good
Reason until the earlier of 30 days after any determination by
the Board or the Bank's board of directors that the Employment
Period shall not be so extended or August 1 of such year;
(E) the failure of the Bank or the Holding
Company to cure a material breach of the Bank Employment
Agreement or this Agreement by the Bank or the Holding
Company, respectively, within sixty days following written
notice thereof from the Officer; or
(F) after a Change of Control (as defined in
section 10), the failure of any successor company to the Bank
to assume the Bank Employment Agreement or of any successor
company to the Holding Company to assume this Agreement.
(ii) the discharge of the Officer by the Bank or the
Holding Company for any reason other than (A) for "Cause" as defined in
section 8(b) of this Agreement or (B) the Officer's death or
"Disability" as defined in section 9(a) of this Agreement; or
(iii) the Officer's voluntary resignation from
employment with the Bank and the Holding Company for any reason within
the sixty-day period commencing six months following a Change of
Control as defined in section 10;
then the Holding Company shall provide the benefits and pay to the Officer as
liquidated damages the amounts provided for under section 7(b).
(b) Upon the termination of the Officer's employment with the
Bank and/or the Holding Company under circumstances described in section 7(a),
the Holding Company shall pay and provide to the Officer:
(i) his earned but unpaid Current Salary as of the
date of termination, plus an amount representing any accrued but unpaid
vacation time and floating holidays;
(ii) if the Officer's termination of employment
occurs after a Change of Control, a pro rata portion of his bonus for
the year of termination, determined by multiplying the amount of the
bonus earned by the Officer for the preceding calendar year by the
number of full months of employment during the year of termination, and
dividing by 12. If the Officer's termination of employment occurs prior
to a Change of Control, the Compensation Committee of the Bank or of
the Holding Company may, in its sole discretion, award the Officer a
bonus for the year of termination, in an amount determined by such
Committee either at the time of termination of employment or at the
time bonuses to active employees are awarded, which the Holding Company
shall pay to the Officer promptly after it has been awarded;
(iii) the benefits, if any, to which he is entitled
as a former employee under the Bank's and the Holding Company's
employee benefit plans and programs and compensation plans and
programs;
(iv) continued health and welfare benefits (including
group life, disability, medical and dental benefits), in addition to
that provided pursuant to section 7(b)(iii), to the extent necessary to
provide coverage for the Officer for a period of 24 months ("Severance
Period"). Such benefits shall be provided through the purchase of
insurance, and shall be equivalent to the health and welfare benefits
(including cost-sharing percentages) provided to active employees of
the Bank and the Holding Company (or any successor thereof) as from
time to time in effect during the Severance Period. Where the amount of
such benefits is based on salary, they shall be provided to the Officer
based on the highest annual rate of Current Salary achieved by the
Officer during the Employment Period. If the Officer had dependent
coverage in effect at the time of his termination of employment, he
shall have the right to elect to continue such dependent coverage for
the Severance Period. The benefits to be provided under this paragraph
(iv) shall cease to the extent that substantially equivalent benefits
are provided to the Officer (and/or his dependents) by a subsequent
employer of the Officer;
(v) if the Officer is age 55 or older at the end of
the Severance Period, he shall be entitled to elect coverage for
himself and his dependents under the Bank's and the Holding Company's
retiree medical and retiree life insurance programs. Such coverage, if
elected, shall commence upon the expiration of the Severance Period,
without regard to whether the Officer commences his pension benefit at
such time, and shall continue for the life of each of the Officer and
his spouse and for so long as any other of his covered dependents
remain eligible. The coverage and cost-sharing percentage of the
Officer and his dependents under such programs shall be those in effect
under such programs on the date of the Officer's termination of
employment with the Bank or the Holding Company, and shall not be
adversely modified without the Officer's written consent; and
(vi) within thirty days following his termination of
employment with the Bank or the Holding Company, a cash lump sum
payment in an amount equal to the Current Salary and bonus that the
Officer would have earned pursuant to sections 4(a) and 4(b),
respectively, if he had continued working for the Holding Company and
the Bank for the Severance Period (basing such bonus on the highest
bonus, if any, paid to the Officer by the Bank or the Holding Company
under section 4(b) of the Bank Employment Agreement or this Agreement
within the three-year period prior to the date of termination).
The lump sum payable pursuant to clause (vi) of this section 7(b) is to be paid
in lieu of all other payments of Current Salary and bonus provided for under
this Agreement relating to the period following any such termination and shall
be payable without proof of damages and without regard to the Officer's efforts,
if any, to mitigate damages. The Holding Company and the Officer hereby
stipulate that the damages which may be incurred by the Officer following any
such termination of employment are not capable of accurate measurement as of the
date first above written and that the payments and benefits provided under this
section 7(b) are reasonable under the circumstances as a combination of
liquidated damages and severance benefits.
Section 8. Termination for Cause or Voluntary
Resignation Without Good Reason.
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(a) In the event that the Officer's employment with the
Holding Company shall terminate during the Employment Period on account of:
(i) the discharge of the Officer by the Holding
Company for Cause; or
(ii) the Officer's voluntary resignation from
employment with the Holding Company for reasons other than those
constituting a Good Reason;
then the Holding Company shall have no further obligations under this Agreement,
other than (A) the payment to the Officer of his earned but unpaid Current
Salary as of the date of the termination of his employment; and (B) the
provision of such other benefits, if any, to which he is entitled as a former
employee under the Bank's and the Holding Company's employee benefit plans and
programs and compensation plans and programs.
(b) For purposes of this Agreement, the term "Cause" means the
Officer's (i) willful failure to perform his duties under this Agreement or
under the Bank Employment Agreement and failure to cure such failure within
sixty days following written notice thereof from the Holding Company or the
Bank, or (ii) intentional engagement in dishonest conduct in connection with his
performance of services for the Holding Company or the Bank or conviction of a
felony.
Section 9. Disability or Death.
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(a) The Officer's employment with the Holding Company may be
terminated for "Disability" if the Officer shall become disabled or
incapacitated during the Employment Period to the extent that he has been unable
to perform the essential functions of his employment for 270 consecutive days,
subject to the Officer's right to receive from the Holding Company following his
termination due to Disability the following percentages of his Current Salary
under section 4 of this Agreement: 100% for the first six months, 75% for the
next six months and 60% thereafter for the remaining term of the Employment
Period (less in each case any benefits which may be payable to the Officer under
the provisions of disability insurance coverage in effect for Bank and/or
Holding Company employees).
(b) In the event that the Officer's employment with the
Holding Company shall terminate during the Employment Period on account of
death, the Holding Company shall promptly pay the Officer's designated
beneficiaries or, failing any designation, his estate a cash lump sum payment
equal to his earned but unpaid Current Salary.
(c) In the event of the Officer's termination of employment on
account of death or Disability prior to a Change of Control, the Compensation
Committee of the Bank or of the Holding Company may, in its sole discretion,
award the Officer a bonus for the year of termination, in an amount determined
by such Committee either at the time of termination of employment or at the time
bonuses to active employees are awarded, in which case the Holding Company shall
pay such bonus to the Officer or, in the event of death, his designated
beneficiaries or estate, as the case may be, promptly after it is awarded. In
the event of the Officer's termination of employment on account of death or
Disability after a Change of Control, the Holding Company shall promptly pay the
Officer, or in the event of death, his designated beneficiaries or estate, as
the case may be, a pro rata portion of his bonus for the year of termination,
determined by multiplying the amount of the bonus earned by the Officer for the
preceding calendar year by the number of full months of employment during the
year of termination, and dividing by 12.
Section 10. Change of Control.
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For purposes of this Agreement, the term "Change of Control"
means:
(a) the acquisition of all or substantially all of the assets
of the Bank or the Holding Company by any person or entity, or by any persons or
entities acting in concert;
(b) the occurrence of any event if, immediately following such
event, a majority of the members of the Board of Directors of the Bank or the
Holding Company or of any successor corporation shall consist of persons other
than Current Members (for these purposes, a "Current Member" shall mean any
member of the Board of Directors of the Bank or the Holding Company as of July
18, 2000 and any successor of a Current Member whose nomination or election has
been approved by a majority of the Current Members then on the Board of
Directors);
(c) the acquisition of beneficial ownership, directly or
indirectly (as provided in Rule 13d-3 of the Securities Exchange Act of 1934
(the "Act"), or any successor rule), of 25% or more of the total combined voting
power of all classes of stock of the Bank or the Holding Company by any person
or group deemed a person under Section 13(d)(3) of the Act; or
(d) approval by the stockholders of the Bank or the Holding
Company of an agreement providing for the merger or consolidation of the Bank or
the Holding Company with another corporation where the stockholders of the Bank
or the Holding Company, immediately prior to the merger or consolidation, would
not beneficially own, directly or indirectly, immediately after the merger or
consolidation, shares entitling such stockholders to 50% or more of the total
combined voting power of all classes of stock of the surviving corporation.
Section 11. Excise Tax Gross-up.
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In the event that the Officer becomes entitled to one or more
payments (with a "payment" including, without limitation, the vesting of an
option or other non-cash benefit or property, whether pursuant to the terms of
this Agreement or any other plan, arrangement or agreement with the Bank or the
Holding Company or any affiliated company or from or pursuant to the terms of
the Flushing Financial Corporation Employee Benefit Trust) (the "Total
Payments"), which are or become subject to the tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax
that may hereafter be imposed) (the "Excise Tax"), the Holding Company shall pay
to the Officer at the time specified below an additional amount (the "Gross-up
Payment") (which shall include, without limitation, reimbursement for any
penalties and interest that may accrue in respect of such Excise Tax) such that
the net amount retained by the Officer, after reduction for any Excise Tax
(including any penalties or interest thereon) on the Total Payments and any
federal, state and local income or employment tax and Excise Tax on the Gross-up
Payment provided for by this section 11, but before reduction for any federal,
state or local income or employment tax on the Total Payments, shall be equal to
the sum of (a) the Total Payments, and (b) an amount equal to the product of any
deductions disallowed for federal, state or local income tax purposes because of
the inclusion of the Gross-up Payment in the Officer's adjusted gross income
multiplied by the highest applicable marginal rate of federal, state or local
income taxation, respectively, for the calendar year in which the Gross-up
Payment is to be made.
For purposes of determining whether any of the Total Payments
will be subject to the Excise Tax and the amount of such Excise Tax,
(i) the Total Payments shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and all
"excess parachute payments" within the meaning of Section 280G(b)(1) of
the Code shall be treated as subject to the Excise Tax, unless, and
except to the extent that, in the written opinion of independent
compensation consultants or auditors of nationally recognized standing
selected by the Holding Company and reasonably acceptable to the
Officer ("Independent Auditors"), the Total Payments (in whole or in
part) do not constitute parachute payments, or such excess parachute
payments (in whole or in part) represent reasonable compensation for
services actually rendered within the meaning of Section 280G(b)(4) of
the Code in excess of the base amount within the meaning of Section
280G(b)(3) of the Code or are otherwise not subject to the Excise Tax,
(ii) the amount of the Total Payments which shall be
treated as subject to the Excise Tax shall be equal to the lesser of
(A) the total amount of the Total Payments or (B) the amount of excess
parachute payments within the meaning of Section 280G(b)(1) of the Code
(after applying clause (i) above), and
(iii) the value of any non-cash benefits or any
deferred payment or benefit shall be determined by the Holding
Company's Independent Auditors appointed pursuant to clause (i) above
in accordance with the principles of Sections 280G(d)(3) and (4) of the
Code.
For purposes of determining the amount of the Gross-up
Payment, the Officer shall be deemed (A) to pay federal income taxes at the
highest marginal rate of federal income taxation for the calendar year in which
the Gross-up Payment is to be made; (B) to pay any applicable state and local
income taxes at the highest marginal rate of taxation for the calendar year in
which the Gross-up Payment is to be made, net of the maximum reduction in
federal income taxes which could be obtained from deduction of such state and
local taxes if paid in such year (determined without regard to limitations on
deductions based upon the amount of the Officer's adjusted gross income); and
(C) to have otherwise allowable deductions for federal, state and local income
tax purposes at least equal to those disallowed because of the inclusion of the
Gross-up Payment in the Officer's adjusted gross income. In the event that the
Excise Tax is subsequently determined to be less than the amount taken into
account hereunder at the time the Gross-up Payment is made, the Officer shall
repay to the Holding Company at the time that the amount of such reduction in
Excise Tax is finally determined (but, if previously paid to the taxing
authorities, not prior to the time the amount of such reduction is refunded to
the Officer or otherwise realized as a benefit by the Officer) the portion of
the Gross-up Payment that would not have been paid if such Excise Tax had been
applied in initially calculating the Gross-up Payment, plus interest on the
amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the
Code. In the event that the Excise Tax is determined to exceed the amount taken
into account hereunder at the time the Gross-up Payment is made (including by
reason of any payment the existence or amount of which cannot be determined at
the time of the Gross-up Payment), the Holding Company shall make an additional
Gross-up Payment in respect of such excess (plus any interest and penalties
payable with respect to such excess) at the time that the amount of such excess
is finally determined.
The Gross-up Payment provided for above shall be paid on the
thirtieth day (or such earlier date as the Excise Tax becomes due and payable to
the taxing authorities) after it has been determined that the Total Payments (or
any portion thereof) are subject to the Excise Tax; provided, however, that if
the amount of such Gross-up Payment or portion thereof cannot be finally
determined on or before such day, the Holding Company shall pay to the Officer
on such day an estimate, as determined by the Holding Company's Independent
Auditors appointed pursuant to clause (i) above, of the minimum amount of such
payments and shall pay the remainder of such payments (together with interest at
the rate provided in Section 1274(b)(2)(B) of the Code), as soon as the amount
thereof can be determined. In the event that the amount of the estimated
payments exceeds the amount subsequently determined to have been due, such
excess shall constitute a loan by the Holding Company to the Officer, payable on
the fifth day after demand by the Holding Company (together with interest at the
rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up
Payment is made, the amount of each Gross-up Payment shall be computed so as not
to duplicate any prior Gross-up Payment. The Holding Company shall have the
right to control all proceedings with the Internal Revenue Service that may
arise in connection with the determination and assessment of any Excise Tax and,
at its sole option, the Holding Company may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with any taxing
authority in respect of such Excise Tax (including any interest or penalties
thereon); provided, however, that the Holding Company's control over any such
proceedings shall be limited to issues with respect to which a Gross-up Payment
would be payable hereunder and the Officer shall be entitled to settle or
contest any other issue raised by the Internal Revenue Service or any other
taxing authority. The Officer shall cooperate with the Holding Company in any
proceedings relating to the determination and assessment of any Excise Tax and
shall not take any position or action that would materially increase the amount
of any Gross-up Payment hereunder.
Section 12. No Effect on Employee Benefit
Plans or Compensation Programs.
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Except as expressly provided in this Agreement, the
termination of the Officer's employment during the term of this Agreement or
thereafter, whether by the Holding Company or by the Officer, shall have no
effect on the rights and obligations of the parties hereto under the Holding
Company's employee benefit plans or programs or compensation plans or programs
(whether or not employee benefit plans or programs) that the Holding Company may
maintain from time to time.
Section 13. Successors and Assigns.
----------------------
This Agreement will inure to the benefit of and be binding
upon the Officer, his legal representatives and estate or intestate
distributees, and the Holding Company and its successors and assigns, including
any successor by merger or consolidation or a statutory receiver or any other
person or firm or corporation to which all or substantially all of the assets
and business of the Holding Company may be sold or otherwise transferred.
Section 14. Notices.
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Any communication to a party required or permitted under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
If to the Officer:
Officer's Name
Officer's Address
If to the Holding Company:
Flushing Financial Corporation
144-51 Northern Boulevard
Flushing, New York 11354
Attention: Secretary
Section 15. Severability.
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A determination that any provision of this Agreement is
invalid or unenforceable shall not affect the validity or enforceability of any
other provision hereof.
Section 16. Waiver.
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Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be made
in writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
Section 17. Counterparts.
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This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, and all of which shall constitute one
and the same Agreement.
Section 18. Governing Law.
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This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of New York, without reference to
conflicts of law principles.
Section 19. Headings.
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The headings of sections in this Agreement are for convenience
of reference only and are not intended to qualify the meaning of any section.
Any reference to a section number shall refer to a section of this Agreement,
unless otherwise stated.
Section 20. Entire Agreement; Modifications.
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This instrument contains the entire agreement of the parties
relating to the subject matter hereof and supersedes in its entirety any and all
prior agreements, understandings or representations relating to the subject
matter hereof, other than the Bank Employment Agreement. No modifications of
this Agreement shall be valid unless made in writing and signed by the parties
hereto.
Section 21. Funding.
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The Holding Company may elect in its sole discretion to fund
all or part of its obligations to the Officer under this Agreement; provided,
however, that should it elect to do so, all assets acquired by the Holding
Company to fund its obligations shall be part of the general assets of the
Holding Company and shall be subject to all claims of the Holding Company's
creditors.
Section 22. Guarantee.
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The Holding Company guarantees the payment by the Bank of any
and all benefits and compensation to which the Officer is entitled under the
Bank Employment Agreement.
Section 23. Non-duplication.
---------------
In the event that the Officer shall perform services for the
Bank or any other direct or indirect subsidiary of the Holding Company, any
compensation or benefits provided to the Officer by such other employer shall be
applied to offset the obligations of the Holding Company hereunder, it being
intended that this Agreement set forth the aggregate compensation and benefits
payable to the Officer for all services to the Holding Company and all of its
direct or indirect subsidiaries. The Officer hereby acknowledges that if any
payment made or benefit provided by the Holding Company under this Agreement is
also required to be made or provided by the Bank under the Bank Employment
Agreement, such payment or benefit by the Holding Company under this Agreement
shall offset the payment required to be made or benefit required to be provided
by the Bank under the Bank Employment Agreement.
Section 24. Required Regulatory Provisions.
------------------------------
Notwithstanding any other provision of this Agreement to the
contrary, any payments made to the Officer pursuant to this Agreement or
otherwise are subject to and conditioned upon their compliance with 12 U.S.C.
section 1828(k) and any regulations promulgated thereunder.
IN WITNESS WHEREOF, the parties have signed this Agreement
as of the day and year first above written.
FLUSHING FINANCIAL CORPORATION
By: _______________________________________
Michael J. Hegarty
President and CEO
Officer: __________________________________
