EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made effective as of October
1, 2007 (the "Effective Date"), by and between Beacon Federal, a federally
chartered savings association with its principal office in East Syracuse, New
York (the "Bank") and Xxxx X. Xxxxxxxx ("Executive").
WHEREAS, Executive is serving as President and Chief Executive Officer of
the Bank and the Bank wishes to assure itself of the services of Executive as an
officer of the Bank for the period provided in this Agreement; and
WHEREAS, in order to induce Executive to remain in the employ of the Bank
and to provide further incentive for Executive to achieve the financial and
performance objectives of the Bank, the parties desire to enter into this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the terms and conditions hereinafter provided, the parties hereby agree
as follows:
1. POSITION AND RESPONSIBILITIES.
During the term of this Agreement, Executive shall serve as President and
Chief Executive Officer of the Bank. Executive shall be responsible for the
overall management of the Bank, and shall be responsible for establishing the
business objectives, policies and strategic plan of the Bank, in conjunction
with the Board of Directors of the Bank (the "Board"). Executive also shall be
responsible for providing leadership and direction to all departments or
divisions of the Bank, and shall be the primary contact between the Board and
the staff. As Chief Executive Officer, Executive shall directly report to the
Board. Executive also shall be nominated as a member of the Board, subject to
election by members or shareholders of the Bank, as the case may be. Executive
also agrees to serve, if elected, as an officer and director of any affiliate of
the Bank.
2. TERM AND DUTIES.
(a) Three Year Contract; Annual Renewal. The term of Executive's employment
under this Agreement shall commence as of the Effective Date and shall continue
thereafter for a period of three (3) years. Commencing on the first anniversary
date of this Agreement (the "Anniversary Date") and continuing on each
Anniversary Date thereafter, the term of this Agreement shall renew for an
additional year such that the remaining term of this Agreement is always three
(3) years, unless written notice of non-renewal (a "Non-Renewal Notice") is
provided to Executive at least thirty (30) days and not more than sixty (60)
days prior to such Anniversary Date, in which case the term of this Agreement
shall become fixed and shall end three (3) years following such Anniversary
Date. The disinterested members of the Board of Directors (the "Board") of the
Bank will conduct a performance evaluation and review of Executive annually for
purposes of determining whether to give notice not to extend the term of this
Agreement, and the results thereof shall be included in the minutes of the
Board's meeting.
(b) Termination of Agreement. Notwithstanding anything contained in this
Agreement to the contrary, either Executive or the Bank may terminate
Executive's employment with the Bank at any time during the term of this
Agreement, subject to the terms and conditions of this Agreement.
(c) Continued Employment Following Expiration of Term. Nothing in this
Agreement shall mandate or prohibit a continuation of Executive's employment
following the expiration of the term of this Agreement, upon such terms and
conditions as the Bank and Executive may mutually agree.
(d) Duties; Membership on Other Boards. During the term of this Agreement,
except for periods of absence occasioned by illness, reasonable vacation
periods, and reasonable leaves of absence approved by the Board, Executive shall
devote substantially all of his business time, attention, skill, and efforts to
the faithful performance of his duties hereunder, including activities and
services related to the organization, operation and management of the Bank;
provided, however, that, with the prior approval of the Board, as evidenced by a
resolution of the Board, from time to time, Executive may serve, or continue to
serve, on the boards of directors of, and hold any other offices or positions
in, business companies or business organizations, which, in the Board's
judgment, will not present any conflict of interest with the Bank, or materially
affect the performance of Executive's duties pursuant to this Agreement.
Executive shall provide the Board of Directors annually for its approval a list
of organizations for which the Executive acts as a director or officer.
3. COMPENSATION, BENEFITS AND REIMBURSEMENT.
(a) Base Salary. In consideration of Executive's performance of the duties
set forth in Section 2, the Bank shall provide Executive the compensation
specified in this Agreement. The Bank shall pay Executive a salary of $180,000
per year ("Base Salary"). The Base Salary shall be payable biweekly, or with
such other frequency as officers of the Bank are generally paid. During the term
of this Agreement, the Base Salary shall be reviewed at least annually by the
Board or by a committee designated by the Board, and the Bank may increase, but
not decrease (except for a decrease that is generally applicable to all
employees) Executive's Base Salary. Any increase in Base Salary shall become
"Base Salary" for purposes of this Agreement.
(b) Bonus and Incentive Compensation. Executive shall be entitled to
incentive compensation and bonuses as provided in any plan or arrangement of the
Bank in which Executive is eligible to participate. Nothing paid to Executive
under any such plan or arrangement will be deemed to be in lieu of other
compensation to which Executive is entitled under this Agreement.
(c) Employee Benefits. The Bank shall provide Executive with employee
benefit plans, arrangements and perquisites substantially equivalent to those in
which Executive was participating or from which he was deriving benefit
immediately prior to the commencement of the term of this Agreement, and the
Bank shall not, without Executive's prior written consent, make any changes in
such plans, arrangements or perquisites that would adversely affect Executive's
rights or benefits thereunder, except as to any changes that are applicable to
all participating employees or as reasonably or customarily available. Without
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limiting the generality of the foregoing provisions of this Section 3(c),
Executive will be entitled to participate in or receive benefits under any
employee benefit plans including, but not limited to, retirement plans,
supplemental retirement plans, pension plans, profit-sharing plans,
health-and-accident insurance plans, medical coverage or any other employee
benefit plan or arrangement made available by the Bank in the future to its
senior executives, including any stock benefit plans, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements.
(d) Paid Time Off. Executive shall be entitled to paid vacation time each
year during the term of this Agreement (measured on a fiscal or calendar year
basis, in accordance with the Bank's usual practices), as well as sick leave,
holidays and other paid absences in accordance with the Bank's policies and
procedures for senior executives. Any unused paid time off during an annual
period shall be treated in accordance with the Bank's personnel policies as in
effect from time to time.
(e) Expense Reimbursements. During the term of this Agreement, the Bank
shall pay or reimburse Executive for the full cost of the use of an automobile
that is mutually agreeable to the Bank and Executive. The Bank shall also pay or
reimburse Executive for all reasonable travel, entertainment and other
reasonable expenses incurred by Executive during the course of performing his
obligations under this Agreement, including, without limitation, fees for
memberships in such clubs and organizations as Executive and the Board shall
mutually agree are necessary and appropriate in connection with the performance
of his duties under this Agreement, upon presentation to the Bank of an itemized
account of such expenses in such form as the Bank may reasonably require.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the term of this Agreement, the provisions of this Section 4 shall apply;
provided, however, that benefits shall be provided either under Section 4 or
Section 5 (related to a Change in Control), but not both, such that to the
extent the Executive has received payments under one of those Sections, the
Executive shall not receive payments under the other of those Sections. As used
in this Agreement, an "Event of Termination" shall mean and include any one or
more of the following:
(i) the termination by the Bank of Executive's full-time employment
hereunder for any reason other than a "Change in Control," as defined in Section
5, a termination for death or "Disability," as set forth in Section 6, a
termination upon "Retirement," as defined in Section 7, or a termination for
"Cause," as defined in Section 8; and
(ii) Executive's resignation from the Bank's employ upon any of the
following, unless consented to by Executive:
(A) failure to appoint Executive to the position set forth in
Section 1, or a material change in Executive's function, duties, or
responsibilities, which change would cause Executive's position to become one of
lesser responsibility, importance, or scope from the position and
responsibilities described in Section 1, to which Executive has not agreed in
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writing (and any such material change shall be deemed a continuing breach of
this Agreement by the Bank);
(B) a relocation of Executive's principal place of employment to
a location that is more than 50 miles from the location of the Bank's principal
executive offices as of the date of this Agreement;
(C) a material reduction in the benefits and perquisites,
including Base Salary, to Executive from those being provided as of the
Effective Date (except for any reduction that is part of a reduction in pay or
benefits that is generally applicable to officers or employees of the Bank);
(D) a liquidation or dissolution of the Bank; or
(E) a material breach of this Agreement by the Bank.
Upon the occurrence of any event described in clause (ii) above, Executive shall
have the right to elect to terminate his employment under this Agreement by
resignation upon not less than 30 days prior written notice given within a
reasonable period of time (not to exceed, except in case of a continuing breach,
90 days) after the event giving rise to the right to elect, which termination by
Executive shall be an Event of Termination; provided, however, that the Bank
shall have at least 30 days to remedy the situation. No payments or benefits
shall be due to Executive under this Agreement upon the termination of
Executive's employment except as provided in Section 4 or 5.
(b) Upon the occurrence of an Event of Termination, the Bank shall pay
Executive, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or liquidated
damages, or both, a lump sum in cash equal to three times the sum of (i) the
highest annual rate of Base Salary paid to Executive at any time under this
Agreement, plus (ii) the highest bonus paid to Executive with respect to the
three most recently completed fiscal years prior to the Event of Termination.
Such payments shall not be reduced in the event Executive obtains other
employment following the Event of Termination. Notwithstanding the foregoing, in
the event Executive is a "Specified Employee," as defined in Internal Revenue
Code ("Code") Section 409A, then, to the extent required to comply with Code
Section 409A, no payment shall be made to Executive prior to the first day of
the seventh month following the Event of Termination.
(c) Upon the occurrence of an Event of Termination, the Bank shall provide
at the Bank's expense, life insurance coverage and non-taxable medical and
dental insurance coverage substantially comparable to the coverage maintained by
the Bank for Executive prior to the Event of Termination, except to the extent
such coverage may be changed in its application to all Bank employees. Such
coverage shall cease thirty-six (36) months following the Event of Termination.
The period for group health care continuation coverage rights under COBRA shall
not begin until the expiration of such thirty-six (36) month period.
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5. CHANGE IN CONTROL.
(a) Any payment made to Executive pursuant to this Section 5 is in lieu of
any payments that may otherwise be owed to Executive pursuant to Section 4, such
that Executive shall either receive payments pursuant to Section 4 or pursuant
to Section 5, but not pursuant to both Sections.
(b) Except for payments that are subject to Code Section 409A, for purposes
of this Agreement, the term "Change in Control" shall mean any of the following
but shall not include a conversion of the Bank from mutual to stock form:
(i) a change in control of a nature that would be required to be
reported in response to Item 5.01(a) of the current report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); or
(ii) a change in control of the Bank within the meaning of the Home
Owners' Loan Act, as amended ("HOLA"), and applicable rules and regulations
promulgated thereunder, as in effect at the time of the Change in Control; or
(iii) any of the following events, upon which a Change in Control shall
be deemed to have occurred:
(A) any "person" (as the term is used in Sections 13(d) and 14(d)
of the Exchange Act) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities of the Bank
or the Bank's holding company representing 25% or more of the combined voting
power of such outstanding securities, except for any securities purchased by any
employee stock ownership plan or trust established by the Bank; or
(B) individuals who constitute the Board on the Effective Date
(the "Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the
Effective Date whose election was approved by a vote of at least three-quarters
of the directors comprising the Incumbent Board, or whose nomination for
election by stockholders of the Bank or the Bank's holding company was approved
by the same Nominating Committee serving under an Incumbent Board, shall be, for
purposes of this subsection (B), considered as though they were members of the
Incumbent Board; or
(C) a sale of all or substantially all the assets of the Bank or
the Bank's holding company, or a plan of reorganization, merger, consolidation,
or similar transaction occurs in which the security holders of the Bank or the
Bank's holding company immediately prior to the consummation of the transaction
do not own at least 50.1% of the securities of the surviving entity to be
outstanding upon consummation of the transaction; or
(D) a proxy statement is issued soliciting proxies from
stockholders of the Bank or the Bank's holding company by someone other than the
current management of the Bank or the holding company of the Bank, seeking
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stockholder approval of a plan of reorganization, merger or consolidation of the
Bank or the Bank's holding company, or similar transaction with one or more
corporations as a result of which the outstanding shares of the class of
securities then subject to the plan are to be exchanged for or converted into
cash or property or securities not issued by the Bank or the Bank's holding
company; or
(E) a tender offer is made for 25% or more of the voting
securities of the Bank or the Bank's holding company, and stockholders owning
beneficially or of record 25% or more of the outstanding securities of the Bank
or the Bank's holding company have tendered or offered to sell their shares
pursuant to such tender offer and such tendered shares have been accepted by the
tender offeror.
(c) With respect to any payments hereunder that are subject to Code
Section 409A, "Change in Control" shall mean (i) a change in the ownership of
the Bank or the Bank's holding company, (ii) a change in the effective control
of the Bank or the Bank's holding company, or (iii) a change in the ownership of
a substantial portion of the assets of the Bank or the Bank's holding company,
as described below:
(i) A change in ownership occurs on the date that any one person, or
more than one person acting as a group (as defined in Treasury Regulations
section 1.409A-3(i)(5)(v)(B)), acquires ownership of stock of the Bank or the
Bank's holding company that, together with stock held by such person or group,
constitutes more than 50% of the total fair market value or total voting power
of the stock of the Bank or the Bank's holding company.
(ii) A change in the effective control of the Bank or the Bank's
holding company occurs on the date that either (i) any one person, or more than
one person acting as a group (as defined in Treasury Regulations section
1.409A-3(i)(5)(vi)(B)) acquires (or has acquired during the 12-month period
ending on the date of the most recent acquisition by such person or persons)
ownership of stock of the Bank or the Bank's holding company possessing 30% or
more of the total voting power of the stock of the Bank or the Bank's holding
company, or (ii) a majority of the members of the Bank's or the Bank's holding
company's board of directors is replaced during any 12-month period by directors
whose appointment or election is not endorsed by a majority of the members of
the Bank's or the Bank's holding company's board of directors prior to the date
of the appointment or election, provided that this subsection 9(b)(2) is
inapplicable where a majority shareholder of the Bank or the Bank's holding
company is another corporation.
(iii) A change in a substantial portion of the Bank's or the Bank's
holding company's assets occurs on the date that any one person or more than one
person acting as a group (as defined in Treasury Regulations section
1.409A-3(i)(5)(vii)(C)) acquires (or has acquired during the 12-month period
ending on the date of the most recent acquisition by such person or persons)
assets from the Bank or the Bank's holding company that have a total gross fair
market value equal to or more than 40% of the total gross fair market value of
(i) all of the assets of the Bank or the Bank's holding company, or (ii) the
value of the assets being disposed of, either of which is determined without
regard to any liabilities associated with such assets. For all purposes of this
subsection 5(c), the definition of Change in Control shall be construed to be
consistent with the requirements of Treasury Regulations section 1.409A-3(i)(5),
except to the extent that such proposed regulations are superseded by subsequent
guidance.
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(d) Upon the occurrence of a Change in Control, Executive, or, in the event
of his death following a Change in Control, his beneficiary or beneficiaries, or
his estate, as the case may be, shall receive as severance pay or liquidated
damages, or both, a lump sum cash payment equal to three times the sum of (i)
Executive's highest annual rate of Base Salary paid to Executive at any time
under this Agreement, plus (ii) the highest bonus paid to Executive with respect
to the three completed fiscal years prior to the Change in Control.
(e) Upon the termination of Executive's employment (other than for Cause)
following a Change in Control, the Bank shall provide at the Bank's expense,
life, medical and dental coverage substantially comparable to the coverage
maintained by the Bank for Executive prior to his termination, except to the
extent such coverage may be changed in its application to all Bank employees.
Such coverage shall cease thirty-six (36) months following the termination of
Executive's employment. In the alternative, the Bank shall pay to Executive a
cash amount equal to Executive's cost of obtaining such benefits on his own,
adjusted for any federal or state income taxes Executive must pay on the cash
amount.
(f) Notwithstanding the preceding paragraphs of this Section 5, in the
event that the aggregate payments or benefits to be made or afforded to
Executive in the event of a Change in Control would be deemed to include an
"excess parachute payment" under Code Section 280G or any successor thereto,
then at the election of Executive, (i) such payments or benefits shall be
payable or provided to Executive over the minimum period necessary to reduce the
present value of such payments or benefits to an amount that is one dollar
($1.00) less than three times Executive's "base amount" under Code Section 280G,
or (ii) the payments or benefits to be provided under this Section 5 shall be
reduced to the extent necessary to avoid treatment as an excess parachute
payment, with the allocation of the reduction among such payments and benefits
to be determined by Executive.
6. TERMINATION FOR DISABILITY OR DEATH.
(a) Termination of Executive's employment based on "Disability" shall be
construed to comply with Code Section 409A and shall be deemed to have occurred
if: (i) Executive is unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can be
expected to result in death, or last for a continuous period of not less than 12
months; (ii) by reason of any medically determinable physical or mental
impairment that can be expected to result in death, or last for a continuous
period of not less than 12 months, Executive is receiving income replacement
benefits for a period of not less than three months under an accident and health
plan covering employees of the Bank or the Bank's holding company; or (iii)
Executive is determined to be totally disabled by the Social Security
Administration. The provisions of Sections 6(b) and (c) shall apply upon the
termination of the Executive's employment based on Disability.
(b) Executive shall be entitled to receive benefits under any short- or
long-term disability plan maintained by the Bank. To the extent such taxable or
non-taxable benefits are less than Executive's after-tax or pre-tax Base Salary
(respectively), the Bank shall pay Executive an amount equal to the difference
between such disability plan benefits and the amount of Executive's Base Salary
for the longer of (i) the remaining term of this Agreement, or (ii) one year
following the termination of his employment due to Disability.
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(c) The Bank shall cause to be continued life, medical and dental coverage
substantially comparable to the coverage maintained by the Bank for Executive
prior to the termination of his employment based on Disability, except to the
extent such coverage may be changed in its application to all Bank employees or
not available on an individual basis to an employee terminated based on
Disability. This coverage shall cease upon the earlier of (i) the date Executive
returns to the full-time employment of the Bank; (ii) Executive's full-time
employment by another employer; (iii) Executive attaining the age of 65; or (iv)
Executive's death.
(d) In the event of Executive's death during the term of this Agreement,
his estate, legal representatives or named beneficiaries (as directed by
Executive in writing) shall be paid Executive's Base Salary at the rate in
effect at the time of Executive's death for a period of one (1) year from the
date of Executive's death, and the Bank shall continue to provide medical,
dental and other insurance benefits normally provided for Executive's family (in
accordance with its customary co-pay percentages) for one (1) year after
Executive's death. Such payments are in addition to any other life insurance
benefits that Executive's beneficiaries may be entitled to receive under any
employee benefit plan maintained by the Bank for the benefit of Executive.
7. TERMINATION UPON RETIREMENT.
Termination of Executive's employment based on "Retirement" shall mean
termination of Executive's employment at any time after Executive reaches age 65
or in accordance with any retirement policy established by the Board with
Executive's consent with respect to him. Upon termination of Executive based on
Retirement, no amounts or benefits shall be due Executive under this Agreement,
and Executive shall be entitled to all benefits under any retirement plan of the
Bank and other plans to which Executive is a party.
8. TERMINATION FOR CAUSE.
(a) The Bank may terminate Executive's employment at any time, but any
termination other than termination for "Cause," as defined herein, shall not
prejudice Executive's right to compensation or other benefits under this
Agreement. Executive shall have no right to receive compensation or other
benefits for any period after termination for "Cause." Termination for "Cause"
shall mean termination because of Executive's personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal profit, material
breach of the Bank's Code of Ethics, material violation of the Xxxxxxxx-Xxxxx
requirements for officers of public companies, if applicable, that in the
reasonable opinion of the Board will likely cause substantial financial harm or
substantial injury to the reputation of the Bank of any holding company of the
Bank, willfully engaging in actions that in the reasonable opinion of the Board
will likely cause substantial financial harm or substantial injury to the
business reputation of the Bank, intentional failure to perform stated duties,
willful violation of any law, rule or regulation (other than routine traffic
violations or similar offenses) or final cease-and-desist order, or material
breach of any provision of this Agreement.
(b) For purposes of this Section 8, no act or failure to act, on the part
of Executive, shall be considered "willful" unless it is done, or omitted to be
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done, by Executive in bad faith or without reasonable belief that Executive's
action or omission was in the best interests of the Bank. Any act, or failure to
act, based upon the direction of the Board or based upon the advice of counsel
for the Bank shall be conclusively presumed to be done, or omitted to be done,
by Executive in good faith and in the best interests of the Bank.
9. RESIGNATION FROM BOARDS OF DIRECTORS
In the event of Executive's termination of employment for any reason,
Executive's service as a director of the Bank, any holding company of the Bank,
and any affiliate of the Bank or holding company shall immediately terminate.
This Section 9 shall constitute a resignation notice for such purposes.
10. NOTICE.
(a) Any purported termination by the Bank for Cause shall be communicated
by Notice of Termination to Executive. If, within thirty (30) days after any
Notice of Termination for Cause is given, Executive notifies the Bank that a
dispute exists concerning the termination, the parties shall promptly proceed to
arbitration, as provided in Section 20. Notwithstanding the pendency of any such
dispute, the Bank shall discontinue paying Executive's compensation until the
dispute is finally resolved in accordance with this Agreement. If it is
determined that Executive is entitled to compensation and benefits under Section
4 or 5, the payment of such compensation and benefits by the Bank shall commence
immediately following the date of resolution by arbitration, with interest due
Executive on the cash amount that would have been paid pending arbitration (at
the prime rate as published in The Wall Street Journal from time to time).
(b) Any other purported termination by the Bank or by Executive shall be
communicated by a "Notice of Termination" (as defined in Section 10(c)) to the
other party. If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, the parties shall promptly
proceed to arbitration as provided in Section 20. Notwithstanding the pendency
of any such dispute, the Bank shall continue to pay Executive his Base Salary,
and other compensation and benefits in effect when the notice giving rise to the
dispute was given (except as to termination of Executive for Cause); provided,
however, that such payments and benefits shall not continue beyond the date that
is thirty-six (36) months from the date the Notice of Termination is given. In
the event the voluntary termination by Executive of his employment is disputed
by the Bank, and if it is determined in arbitration that Executive is not
entitled to termination benefits pursuant to this Agreement, he shall return all
cash payments made to him pending resolution by arbitration, with interest
thereon at the prime rate as published in The Wall Street Journal from time to
time, if it is determined in arbitration that Executive's voluntary termination
of employment was not taken in good faith and not in the reasonable belief that
grounds existed for his voluntary termination. If it is determined that
Executive is entitled to receive severance benefits under this Agreement, then
any continuation of Base Salary and other compensation and benefits made to
Executive under this Section 10 shall offset the amount of any severance
benefits that are due to Executive under this Agreement.
(c) For purposes of this Agreement, a "Notice of Termination" shall mean a
written notice that shall indicate the specific termination provision in this
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Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
11. POST-TERMINATION OBLIGATIONS.
(a) Executive hereby covenants and agrees that, for a period of one
year following his termination of employment with the Bank, he shall not,
without the written consent of the Bank, either directly or indirectly:
(i) solicit, offer employment to, or take any other action intended (or
that a reasonable person acting in like circumstances would expect) to have the
effect of causing any officer or employee of the Bank or of any holding company
of the Bank, or any of their respective subsidiaries or affiliates, to terminate
his or her employment and accept employment or become affiliated with, or
provide services for compensation in any capacity whatsoever to, any business
whatsoever that competes with the business of the Bank or of any holding company
of the Bank, or any of their direct or indirect subsidiaries or affiliates or
has headquarters or offices within 50 miles of the locations in which the Bank
of any holding company of the Bank has business operations or has filed an
application for regulatory approval to establish an office;
(ii) become an officer, employee, consultant, director, independent
contractor, agent, sole proprietor, joint venturer, greater than 5% equity owner
or stockholder, partner or trustee of any savings bank, savings and loan
association, savings and loan holding company, credit union, bank or bank
holding company, insurance company or agency, any mortgage or loan broker or any
other entity competing with the Bank or its affiliates in the same geographic
locations where the Bank or its affiliates has material business interests;
provided, however, that this restriction shall not apply if Executive's
employment is terminated following a Change in Control; or
(iii) solicit, provide any information, advice or recommendation or
take any other action intended (or that a reasonable person acting in like
circumstances would expect) to have the effect of causing any customer of the
Bank to terminate an existing business or commercial relationship with the Bank.
(b) Executive shall, upon reasonable notice, furnish such information and
assistance to the Bank as may reasonably be required by the Bank, in connection
with any litigation in which it or any of its subsidiaries or affiliates is, or
may become, a party; provided, however, that Executive shall not be required to
provide information or assistance with respect to any litigation between the
Executive and the Bank or any of its subsidiaries or affiliates.
(c) All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with this Section 11. The parties hereto,
recognizing that irreparable injury will result to the Bank, its business and
property in the event of Executive's breach of this Section 11, agree that, in
the event of any such breach by Executive, the Bank will be entitled, in
addition to any other remedies and damages available, to an injunction to
restrain the violation hereof by Executive and all persons acting for or with
Executive. Executive represents and admits that Executive's experience and
capabilities are such that Executive can obtain employment in a business engaged
in other lines and/or of a different nature than the Bank, and that the
enforcement of a remedy by way of injunction will not prevent Executive from
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earning a livelihood. Nothing herein will be construed as prohibiting the Bank
or any holding company of the Bank from pursuing any other remedies available to
them for such breach or threatened breach, including the recovery of damages
from Executive.
12. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank. Any holding company established by the
Bank may accede to this Agreement but only for the purposed of guaranteeing
payment and provision of all amounts and benefits due hereunder to Executive.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank and Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to Executive of
a kind elsewhere provided. No provision of this Agreement shall be interpreted
to mean that Executive is subject to receiving fewer benefits than those
available to him without reference to this Agreement.
14. NO ATTACHMENT; BINDING ON SUCCESSORS.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Bank and their respective successors and assigns.
15. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
16. REQUIRED PROVISIONS.
(a) The Bank may terminate Executive's employment at any time, but any
termination by the Board other than termination for Cause shall not prejudice
11
Executive's right to compensation or other benefits under this Agreement.
Executive shall have no right to receive compensation or other benefits for any
period after termination for Cause.
(b) If Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) [12 USC ss.1818(e)(3)] or 8(g)(1) [12 USC ss.1818(g)(1)] of the
Federal Deposit Insurance Act, the Bank's obligations under this contract shall
be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Bank may in its
discretion (i) pay Executive all or part of the compensation withheld while its
contract obligations were suspended and (ii) reinstate (in whole or in part) any
of its obligations which were suspended.
(c) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) [12 USC ss.1818(e)(4)] or 8(g)(1) [12 USC ss.1818(g)(1)] of the
Federal Deposit Insurance Act, all obligations of the Bank under this Agreement
shall terminate as of the effective date of the order, but vested rights of the
contracting parties shall not be affected.
(d) If the Bank is in default as defined in Section 3(x)(1) [12 USC
ss.1813(x)(1)] of the Federal Deposit Insurance Act, all obligations of the Bank
under this Agreement shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the contracting parties.
(e) All obligations under this Agreement shall be terminated, except to the
extent determined that continuation of the contract is necessary for the
continued operation of the Bank, (i) by the Director of the OTS or his or her
designee, at the time the FDIC enters into an agreement to provide assistance to
or on behalf of the Bank under the authority contained in Section 13(c) [12 USC
ss.1823(c)] of the Federal Deposit Insurance Act; or (ii) by the Director or his
or her designee at the time the Director or his or her designee approves a
supervisory merger to resolve problems related to operation of the Bank or when
the Bank is determined by the Director to be in an unsafe or unsound condition.
Any rights of the parties that have already vested, however, shall not be
affected by such action.
(f) Notwithstanding anything herein contained to the contrary, any payments
to Executive by the Bank or any holding company of the Bank, whether pursuant to
this Agreement or otherwise, are subject to and conditioned upon their
compliance with Section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C.
Section 1828(k), and the regulations promulgated thereunder in 12 C.F.R. Part
359.
17. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
12
18. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
19. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New York but
only to the extent not superseded by federal law.
20. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by binding arbitration, as an alternative
to civil litigation and without any trial by jury to resolve such claims,
conducted by a panel of three arbitrators sitting in a location selected by
Executive within fifty (50) miles from the main office of the Bank, in
accordance with the rules of the American Arbitration Association's National
Rules for the Resolution of Employment Disputes ("National Rules") then in
effect. One arbitrator shall be selected by Executive, one arbitrator shall be
selected by the Bank and the third arbitrator shall be selected by the
arbitrators selected by the parties. If the arbitrators are unable to agree
within fifteen (15) days upon a third arbitrator, the arbitrator shall be
appointed for them from a panel of arbitrators selected in accordance with the
National Rules. Judgment may be entered on the arbitrator's award in any court
having jurisdiction.
21. INDEMNIFICATION.
(a) Executive shall be provided with coverage under a standard directors'
and officers' liability insurance policy, and shall be indemnified for the term
of this Agreement and for a period of six years thereafter to the fullest extent
permitted under applicable law against all expenses and liabilities reasonably
incurred by him in connection with or arising out of any action, suit or
proceeding in which he may be involved by reason of his having been a director
or officer of the Bank or any affiliate (whether or not he continues to be a
director or officer at the time of incurring such expenses or liabilities), such
expenses and liabilities to include, but not be limited to, judgments, court
costs and attorneys' fees and the cost of reasonable settlements (such
settlements must be approved by the Board), provided, however, Executive shall
not be indemnified or reimbursed for legal expenses or liabilities incurred in
connection with an action, suit or proceeding arising from any illegal or
fraudulent act committed by Executive. Any such indemnification shall be made
consistent with Section 545.121 of the OTS Regulations and Section 18(k) of the
Federal Deposit Insurance Act, 12 U.S.C. ss.1828(K), and the regulations issued
thereunder in 12 C.F.R. Part 359.
(b) Any indemnification by the Bank shall be subject to compliance with
any applicable regulations of the OTS.
13
22. ADDRESS FOR NOTICE.
For the purposes of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed to the respective addresses set
forth below:
To the Bank: Beacon Federal
0000 Xxxxx Xxxxxx Xxxx
Xxxx Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
To Executive: Xxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
SIGNATURES
IN WITNESS WHEREOF, the Bank has caused this Agreement to be executed by
its duly authorized representatives, and Executive has signed this Agreement, as
of the date first above written.
BEACON FEDERAL
October 3, 2007 By: /s/ Xxxxxxx X. Xxxxx
--------------------------- --------------------------------
Date Chairman of the Board
EXECUTIVE:
October 1, 2007 /s/ Xxxx X. Xxxxxxxx
--------------------------- -----------------------------------
Date Xxxx X. Xxxxxxxx
