Exhibit 10.1
AMENDED AND
RESTATED
ANTHONY J.
SZUSZCZEWICZ
COMPANY EMPLOYMENT
AGREEMENT
THIS AGREEMENT originally entered into on the 11
th day of January, 2007 (the
“Agreement”) (the “Effective
Date”), by and between POLONIA BANCORP, a federally
chartered corporation (the “Company”), and ANTHONY
J. SZUSZCZEWICZ (the “Executive”) is amended and
restated in its entirety as of December 16, 2008.
WHEREAS, Executive continues to serve in a position of
substantial responsibility; and
WHEREAS, the Company wishes to continue to assure
Executive’s services for the term of this Agreement;
and
WHEREAS, Executive is willing to continue to serve in the
employ of the Company during the term of this Agreement;
and
WHEREAS, the parties to this Agreement desire to amend
and restate the Agreement in order to bring in into compliance with
Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”).
NOW, THEREFORE, in consideration of the mutual covenants
contained in this Agreement, and upon the other terms and
conditions provided for in this Agreement, the parties hereby agree
as follows:
1.
Employment . The Company will employ
Executive as Chairman, President and Chief Executive
Officer. Executive will perform all duties and shall
have all powers commonly incident to the offices of Chairman,
President and Chief Executive Officer or which, consistent with
those offices, the Board of Directors of the Company (the
“Board”) delegates to Executive. During the
term of this Agreement, Executive also agrees to serve, if elected,
as an officer and/or director of any subsidiary or affiliate of the
Company and to carry out the duties and responsibilities reasonably
appropriate to those offices.
2.
Location and Facilities . The Company
will furnish Executive with the working facilities and staff
customary for executive officers with the titles and duties set
forth in Section 1 and as are necessary for him to perform his
duties. The location of such facilities and staff shall
be at the principal administrative offices of the Company and the
Bank, or at such other site or sites customary for such
offices.
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The term of
this Agreement shall include: (i) the initial term, consisting of
the period commencing on Effective Date and ending on January 11,
2010, plus (ii) any and all extensions of the initial term made
pursuant to Section 3 of this Agreement.
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Commencing
prior to the first anniversary of the Effective Date and continuing
on each anniversary of the Effective Date thereafter, the
disinterested members of the Board may extend the Agreement term
for an additional year, so that the remaining term of the Agreement
again becomes thirty-six (36) months, unless Executive elects not
to extend the term of this Agreement by giving written notice in
accordance with Section 19 of this Agreement. The Board
will review the Agreement term and Executive’s performance
annually for purposes of determining whether to extend the
Agreement and will include the rationale and results of its review
in the minutes of the meeting. The Board will notify
Executive as soon as possible after its annual review whether the
Board has determined to extend the Agreement.
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The Company
agrees to pay Executive during the term of this Agreement a base
salary at the rate of $277,500 per year, payable in accordance with
customary payroll practices.
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Each year, the
Board will review the level of Executive’s base salary, based
upon factors they deem relevant, in order to determine whether to
maintain or increase his base salary.
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5.
Bonuses . Executive will participate in
discretionary bonuses or other incentive compensation programs that
the Company may award from time to time to senior management
employees.
6.
Benefit Plans . Executive will
participate in life insurance, medical, dental, pension, profit
sharing, retirement and stock-based compensation plans and other
programs and arrangements that the Company may sponsor or
maintain.
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Executive may
take vacations and other leave in accordance with policy for senior
executives, or otherwise as approved by the Board.
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In addition to
paid vacations and other leave, the Board may grant Executive a
leave or leaves of absence, with or without pay, at such time or
times and upon such terms and conditions as the Board, in its
discretion, may determine.
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8.
Expense Payments and Reimbursements . The
Company will reimburse Executive for all reasonable out-of-pocket
business expenses incurred in connection with his services under
this Agreement upon substantiation of such expenses in accordance
with applicable policies of the Company.
9.
Automobile Allowance . During the
term of this Agreement, the Company will provide Executive with the
use of an automobile, including insurance, maintenance and
work-related fuel expenses, or, in the alternative and the sole
discretion of the Company, the Company will provide Executive with
an automobile allowance which would approximate the expense of a
Company-provided automobile and related insurance, maintenance and
fuel costs. Executive will comply with reasonable
reporting and expense limitations on the use of such automobile as
the Company may establish from time to time, and the Company shall
annually include on Executive’s Form W-2 any income
attributable to Executive’s personal use of the
automobile.
10.
Loyalty and Confidentiality .
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During the term
of this Agreement, Executive will devote all his business time,
attention, skill, and efforts to the faithful performance of his
duties under this Agreement; provided, however, that from time to
time, Executive may serve on the boards of directors of, and hold
any other offices or positions in, companies or organizations that
will not present any conflict of interest with the Company or any
of its subsidiaries or affiliates, unfavorably affect the
performance of Executive’s duties pursuant to this Agreement,
or violate any applicable statute or
regulation. Executive will not engage in any business or
activity contrary to the business affairs or interests of the
Company or any of its subsidiaries or affiliates.
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Nothing
contained in this Agreement will prevent or limit Executive’s
right to invest in the capital stock or other securities or
interests of any business dissimilar from that of the Company, or,
solely as a passive, minority investor, in any business.
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Executive
agrees to maintain the confidentiality of any and all information
concerning the operation or financial status of the Company and its
affiliates; the names or addresses of any borrowers, depositors and
other customers; any information concerning or obtained from such
customers; and any other information concerning the Company or its
affiliates to which he may be exposed during the course of his
employment. Executive further agrees that, unless
required by law or specifically permitted by the Board in writing,
he will not disclose to any person or entity, either during or
subsequent to his employment, any of the above-mentioned
information which is not generally known to the public, nor will he
use the information in any way other than for the benefit of the
Company.
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11.
Termination and Termination Pay . Subject
to Section 12 of this Agreement, Executive’s employment under
this Agreement may be terminated in the following
circumstances:
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Death . Executive’s employment under
this Agreement will terminate upon his death during the term of
this Agreement, in which event Executive’s estate will
receive the compensation due to Executive through the last day of
the calendar month in which his death occurred.
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Retirement . This Agreement will terminate upon
Executive’s retirement under the retirement benefit plan or
plans in which he participates pursuant to Section 6 of this
Agreement or otherwise.
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The Board or
Executive may terminate Executive’s employment after having
determined Executive has a Disability. For purposes of
this Agreement, “Disability” means a physical or mental
infirmity that impairs Executive’s ability to substantially
perform his duties under this Agreement and results in Executive
becoming eligible for long-term disability benefits under any
long-term disability plans of the Company (or, if no such plans
exists, that impairs Executive’s ability to substantially
perform his duties under this Agreement for a period of one hundred
eighty (180) consecutive days). The Board will determine
whether or not Executive is and continues to be permanently
disabled for purposes of this Agreement in good faith, based upon
competent medical advice and other factors that the Board
reasonably believes to be relevant. As a condition to
any benefits, the Board may require Executive to submit to physical
or mental evaluations and tests as the Board or its medical experts
deem reasonably appropriate.
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In the event of
his Disability, Executive will no longer be obligated to perform
services under this Agreement. The Company will pay
Executive, as Disability pay, an amount equal to seventy-five
percent (75%) of Executive’s rate of base salary in effect as
of the date of his termination of employment due to Disability. The
Company will make Disability payments on a monthly basis commencing
on the first day of the month following the effective date of
Executive’s termination of employment due to Disability and
ending on the earlier of: (A) the date he returns to full-time
employment in the same capacity as he was employed prior to his
termination for Disability; (B) his death; (C) his attainment of
age 65; or (D) the date this Agreement would have expired had
Executive’s employment not terminated by reason of
Disability. The Company will reduce Disability payments
by the amount of any short- or long-term disability benefits
payable to Executive under any other disability programs sponsored
by the Company. In addition, during any period of
Executive’s Disability, the Company will continue to provide
Executive and his dependents, to the greatest extent possible, with
continued coverage under all benefit plans (including, without
limitation, retirement plans and medical, dental and life insurance
plans) in which Executive and/or his dependents participated prior
to Executive’s Disability on the same terms as if he remained
actively employed by the Company.
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(d)
Termination for Cause .
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The Board may,
by written notice to Executive in the form and manner specified in
this paragraph, immediately terminate his employment at any time
for “Cause.” Executive shall have no right
to receive compensation or other benefits for any period after
termination for Cause. Termination for Cause shall
include termination because of Executive’s:
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Breach of
fiduciary duty involving personal profit;
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Intentional
failure to perform stated duties;
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Willful
violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease and desist order;
or
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Material breach
by Executive of any provision of this Agreement.
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Notwithstanding
the foregoing, Executive’s termination for Cause will not
become effective unless the Company has delivered to Executive a
copy of a resolution duly adopted by the affirmative vote of a
majority of the entire membership of the Board at a meeting of the
Board called and held for the purpose of finding (after reasonable
notice to Executive as an opportunity for Executive to be heard
before the Board with counsel), that Executive was guilty of the
conduct described above and specifying the particulars of his
conduct.
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Voluntary
Termination by Executive . In addition to his other rights to
terminate under this Agreement, Executive may voluntarily terminate
employment during the term of this Agreement upon at least sixty
(60) days prior written notice to the Board. Upon
Executive’s voluntary termination, he will receive only his
compensation and vested rights and benefits up to the date of his
termination. Following his voluntary termination of
employment under this Section 11(e), Executive will be subject to
the restrictions set forth in Sections 11(g)(i) and 11(g)(ii) of
this Agreement for a period of one (1) year from his termination
date.
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Without
Cause or With Good Reason .
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In addition to
termination pursuant to Sections 11(a) through 11(e), the Board
may, by written notice to Executive, immediately terminate his
employment at any time for a reason other than Cause (a termination
“Without Cause”) and Executive may, by
written notice to the Board, terminate his employment under this
Agreement for “Good Reason,” as defined below (a
termination “With Good Reason”).
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Subject to
Section 12 of this Agreement, in the event of termination under
this Section 11(f), Executive will receive his base salary and the
value of employer contributions to benefit plans in which the
Executive participated upon termination for the remaining term of
the Agreement, paid in one lump sum within ten (10) calendar days
of his termination. Executive will also continue to
participate in any benefit plans of the Company that provide
medical, dental and life insurance coverage for the remaining term
of the Agreement, under terms and conditions no less favorable than
the most favorable terms and conditions provided to senior
executives of the Company during the same period. If the
Company cannot provide such coverage because Executive is no longer
an employee, the Company will provide Executive with comparable
coverage on an individual policy basis or the cash
equivalent.
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For purposes of
this Agreement “Good Reason” shall mean the occurrence
of any of the following events without the
Executive’
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