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Exhibit
10.7
A MENDED
AND R ESTATED E
MPLOYMENT A GREEMENT
This Amended and Restated
Employment Agreement (“the Agreement”) is made and
entered into as of November 28, 2007 (the “Effective
Date”) by and between The Rome Savings Bank,
federally-chartered savings bank having an office at 100 West
Dominick Street, Rome, New York 13440-5810 (the “Bank”)
and Charles M. Sprock, an individual residing at 1843 North James
Street, Rome, New York 13440 (the
“Executive”).
W I
T N E S
S E T H
:
W
HEREAS , the Executive currently serves as
President and Chief Executive Officer of the Bank, a subsidiary of
Rome Bancorp, Inc. (the “Company”);
W
HEREAS , the Bank desires to assure for itself
the continued availability of the Executive’s services as
provided in this Agreement and the ability of the Executive to
perform such services with a minimum of personal distraction in the
event of a pending or threatened Change of Control (as hereinafter
defined); and
W
HEREAS , the Executive is willing to continue to
serve the Bank on the terms and conditions hereinafter set
forth;
N OW , T
HEREFORE , in consideration of the premises and
the mutual covenants and conditions hereinafter set forth, the Bank
and the Executive hereby agree as follows:
Section 1.
Employment .
The Bank agrees to continue
to employ the Executive, and the Executive hereby agrees to such
continued employment, during the period and upon the terms and
conditions set forth in this Agreement.
Section 2.
Employment Period; Remaining Unexpired Employment
Period.
(a) The terms and conditions
of this Agreement shall be and remain in effect during the period
of employment established under this section 2 (“Employment
Period”). The Employment Period shall be for an initial term
of three (3) years beginning on the Effective Date and ending
on the third anniversary date of this Agreement, plus such
extensions, if any, as are provided pursuant to section
2(b).
(b) The Board of Directors of
the Bank (the “Board”) shall conduct an annual review
of the Executive’s performance on or about each anniversary
of the Effective Date (each, an “Anniversary Date”) and
may, on the basis of such review and by written notice to the
Executive, offer to extend the Employment Period for an additional
one (1)-year period. In such event, the Employment Period shall be
deemed extended in the absence of objection from the Executive by
written notice to the Bank given within ten (10) business days
after his receipt of the Bank’s offer of extension. Except as
otherwise expressly provided in this Agreement, any reference in
this Agreement to the term “Remaining Unexpired Employment
Period” as of any date shall mean the period beginning on
such date and ending on the day of the third (3 rd ) anniversary of the last
Anniversary Date as of which the Employment Period was extended
pursuant to this Section 2(b).
(c) Nothing in this Agreement
shall be deemed to prohibit the Bank at any time from terminating
the Executive’s employment during the Employment Period with
or without notice for any reason; provided, however , that
the relative rights and obligations of the Bank and the Executive
in the event of any such termination shall be determined under this
Agreement.
Section 3.
Duties .
The Executive shall serve as
President and Chief Executive Officer of the Bank, having such
power, authority and responsibility and performing such duties as
are prescribed by or under the By-Laws of the Bank and as are
customarily associated with such position. The Executive shall
devote his full business time and attention (other than during
weekends, holidays, approved vacation periods, and periods of
illness or approved leaves of absence) to the business and affairs
of the Bank and shall use his best efforts to advance the interests
of the Bank.
Section 4. Cash
Compensation .
In consideration for the
services to be rendered by the Executive hereunder, the Bank shall
continue to pay to him a salary at an annual rate of $250,000,
payable in approximately equal installments in accordance with the
Bank’s customary payroll practices for senior officers. Prior
to each Anniversary Date, the Board shall review the
Executive’s annual rate of salary at such times during the
Employment Period as it deems appropriate, but not less frequently
than once every twelve (12) months, and may, in its
discretion, approve an increase therein. In addition to salary, the
Executive may receive other cash compensation from the Bank for
services hereunder at such times, in such amounts and on such terms
and conditions as the Board may determine from time to
time.
Section 5.
Employee Benefit Plans and Programs .
During the Employment Period,
the Executive shall be treated as an employee of the Bank and shall
be entitled to participate in and receive benefits under any and
all qualified or non-qualified retirement, pension, savings,
profit-sharing or stock bonus plans, any and all group life, health
(including hospitalization, medical and major medical), dental,
accident and long term disability insurance plans, and any other
employee benefit and compensation plans (including, but not limited
to, any incentive compensation plans or programs, stock option and
appreciation rights plans and restricted stock plans) as may from
time to time be maintained by, or cover employees of, the Bank in
accordance with the terms and conditions of such employee benefit
plans and programs and compensation plans and programs and
consistent with the Bank’s customary practices.
Section 6.
Indemnification and Insurance .
(a) During the Employment
Period and for a period of six (6) years thereafter, the Bank
shall cause the Executive to be covered by and named as an insured
under any policy or contract of insurance obtained by it to insure
its directors and officers against personal liability
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for acts or omissions in connection with
service as an officer or director of the Bank or service in other
capacities at the request of the Bank. The coverage provided to the
Executive pursuant to this section 6 shall be of the same scope and
on the same terms and conditions as the coverage (if any) provided
to other officers or directors of the Bank.
(b) To the maximum extent
permitted under applicable law, during the Employment Period and
for a period of six (6) years thereafter, the Bank shall
indemnify the Executive against and hold him harmless from any
costs, damages, losses and exposures arising out of a bona fide
action, suit or proceeding in which he may be involved by reason of
his having been a director or officer of the Bank to the fullest
extent and on the most favorable terms and conditions that similar
indemnification is offered to any director or officer of the Bank
or any subsidiary or affiliate thereof.
(c) The Executive, the
Company and the Bank agree that the termination benefits described
in this Section 6 are intended to be exempt from
Section 409A of the Internal Revenue Code (“Section
409A”) pursuant to Treasury Regulation
Section 1.409A-1(b)(10) as certain indemnification and
liability insurance plans.
Section 7.
Outside Activities .
The Executive may serve as a
member of the boards of directors of such business, community and
charitable organizations as he may disclose to and as may be
approved by the Board (which approval shall not be unreasonably
withheld); provided, however , that such service shall not
materially interfere with the performance of his duties under this
Agreement. The Executive may also engage in personal business and
investment activities which do not materially interfere with the
performance of his duties hereunder; provided, however ,
that such activities are not prohibited under any code of conduct
or investment or securities trading policy established by the Bank
and generally applicable to all similarly situated Executives. The
Executive may also serve as an officer or director of the Company
on such terms and conditions as the Company and the Bank may
mutually agree upon, and such service shall not be deemed to
materially interfere with the Executive’s performance of his
duties hereunder or otherwise result in a material breach of this
Agreement. If the Executive is discharged or suspended, or is
subject to any regulatory prohibition or restriction with respect
to participation in the affairs of the Bank, he shall not directly
or indirectly provide services to or participate in the affairs of
the Bank in a manner inconsistent with the terms of such discharge
or suspension or any applicable regulatory order.
Section 8.
Working Facilities and Expenses .
The Executive’s
principal place of employment shall be at the Bank’s
executive offices at the address first above written, or at such
other location within fifty (50) miles of the address at which
the Bank shall maintain its principal executive offices, or at such
other location as the Bank and the executive may mutually agree
upon. The Bank shall provide the Executive at his principal place
of employment with a private office, secretarial services and other
support services and facilities suitable to his position with the
Bank and necessary or appropriate in connection with the
performance of his assigned duties under this Agreement. The Bank
shall reimburse the Executive for his ordinary and necessary
business expenses, including, without limitation, the
Executive’s travel and entertainment expenses incurred in
connection with the performance of his duties under this Agreement,
in each case upon presentation to the Bank of an itemized account
of such expenses in such form as the Bank may reasonably
require.
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Section 9.
Termination of Employment with Severance Benefits
.
(a) The Executive shall be
entitled to the severance benefits described in section 9(b) in the
event that:
(i) his employment with the
Bank terminates during the Employment Period as a result of the
Executive’s voluntary resignation within ninety
(90) days following:
(A) the failure of the Board
to appoint or re-appoint or elect or re-elect the Executive to the
position with the Bank stated in section 3 of this
Agreement;
(B) if the Executive is a
member of the Board, the failure of the shareholders of the Bank to
elect or re-elect the Executive to the Board or the failure of the
Board (or the nominating committee thereof) to nominate the
Executive for such election or re-election;
(C) the expiration of a
thirty (30)-day period following the date on which the Executive
gives written notice to the Bank of its material failure, whether
by amendment of the Bank’s Restated Organization Certificate,
the Bank’s By-Laws, action of the Board or the Bank’s
shareholders or otherwise, to vest in the Executive the functions,
duties, or responsibilities prescribed in section 3 of this
Agreement, unless, during such thirty (30)-day period, the Bank
cures such failure; or
(D) the expiration of a
thirty (30)-day period following the date on which the Executive
gives written notice to the Bank of its material breach of any
term, condition or covenant contained in this Agreement (including,
without limitation any reduction of the Executive’s rate of
base salary in effect from time to time and any change in the terms
and conditions of any compensation or benefit program in which the
Executive participates which, either individually or together with
other changes, has a material adverse effect on the aggregate value
of his total compensation package), unless, during such thirty
(30)-day period, the Bank cures such failure; or
(E) a change in the
Executive’s principal place of employment for a distance in
excess of fifty (50) miles from the Bank’s principal
office in Rome, New York; or
(ii) the Executive’s
employment with the Bank is terminated by the Bank for any reason
other than for “cause” as provided in section
11(a).
(b) Upon the occurrence of
any of the events described in section 9(a) of this Agreement, the
Bank shall pay and provide to the Executive (or, in the event of
his death thereafter and prior to payment, to his
estate):
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(i) his earned but unpaid
salary (including, without limitation, all items which constitute
wages under applicable law and the payment of which is not
otherwise provided for in this section 9(b)) as of the date of the
termination of his employment with the Company and the Bank, such
payment to be made at the time and in the manner prescribed by law
applicable to the payment of wages but in no event later than
thirty (30) days after termination of employment, as defined
in Treasury Regulation Section 1.409A-1(h)(1)(ii);
(ii) the benefits, if any, to
which he is entitled as a former employee under the employee
benefit plans and programs and compensation plans and programs
maintained for the benefit of the Company’s and the
Bank’s officers and employees;
(iii) continued group life,
health (including hospitalization, medical and major medical),
dental, accident and long term disability insurance coverage in
addition to that provided pursuant to section 9(b)(ii), for the
Remaining Unexpired Employment Period, equivalent to the coverage
to which he would have been entitled under such plans (as in effect
on the date of his termination of employment, or, if his
termination of employment occurs after a Change of Control, on the
date of such Change of Control, whichever benefits are greater), if
he had continued working for the Company and the Bank during the
Remaining Unexpired Employment Period at the highest annual rate of
salary achieved during the Employment Period, but taking into
account any coverage provided from any subsequent employer. In
addition, notwithstanding the foregoing, if the provision of any of
the benefits covered by this Section 9(b)(iii) would trigger
the 20% tax and interest penalties under Section 409A, then
the benefit(s) that would trigger such tax and interest penalties
shall not be provided (collectively, the “Excluded
Benefits”), and in lieu of the Excluded Benefits the Bank
shall pay to the Executive, in a lump sum within thirty
(30) days following termination of employment or within thirty
(30) days after such determination should it occur after
termination of employment, a cash amount equal to the economic
equivalent (as defined as the present value of the full monthly
premium cost over the remaining unexpired term using the 120%
discount rate of the short-term applicable federal rate as put
forth in the IRS Regulations) of such Excluded Benefits;
(iv) within thirty
(30) days following the Executive’s termination of
employment with the Company or the Bank, a lump sum payment, in an
amount equal to the present value of the salary (excluding any
additional payments made to the Executive in lieu of the use of an
automobile) that the Executive would have earned if he had
continued working for the Company and the Bank during the Remaining
Unexpired Employment Period at the highest annual rate of salary
achieved during the Employment Period, where such present value is
to be determined using a discount rate equal to the applicable
short-term federal rate prescribed under section 1274(d) of the
Internal Revenue Code of 1986, as amended (“Code”),
compounded using the compounding periods corresponding to the
Company’s regular payroll periods for its officers, such lump
sum to be paid in lieu of all other payments of salary provided for
under this Agreement in respect of the period following any such
termination;
(v) within thirty
(30) days following the Executive’s termination of
employment with the Company or the Bank, a lump sum payment in an
amount equal to
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the present value of the
additional employer contributions to which he would have been
entitled under any and all qualified and non-qualified defined
contribution plans maintained by the Company or the Bank in which
Executive participates, as if he were 100% vested thereunder and
had continued working for the Company and the Bank during the
Remaining Unexpired Employment Period at the highest annual rate of
salary achieved during the Employment Period and making the maximum
amount of employee contributions, if any, required under such plan
or plans, such present value to be determined on the basis of a
discount rate, compounded using the compounding period that
corresponds to the frequency with which employer contributions are
made to the relevant plan, equal to the applicable short-term
federal rate prescribed under section 1274(d) of the
Code;
(vi) the payments that would
have been made to the Executive under any cash or stock bonus or
long-term or short-term cash incentive compensation plan maintained
by, or covering employees of, the Company or the Bank if he had
continued working for the Company and the Bank during the Remaining
Unexpired Employment Period and had earned the maximum bonus or
incentive award in each calendar year that ends during the
Remaining Unexpired Employment Period, such payments to be equal to
the product of:
(A) the maximum percentage
rate at which an award was ever available to the Executive under
such incentive compensation plan; multiplied by
(B) the salary that would
have been paid to the Executive during each such calendar year at
the highest annual rate of salary achieved during the Employment
Period;
such payments to be made (without
discounting for early payment) within thirty (30) days
following the Executive’s termination of
employment;
The Bank and the Executive hereby
stipulate that the damages which may be incurred by the Executive
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 contemplated by this section 9(b)
constitute reasonable damages under the circumstances and shall be
payable without any requirement of proof of actual damage and
without regard to the Executive’s efforts, if any, to
mitigate damages. The Bank and the Executive further agree that the
Bank may condition the payments and benefits (if any) due under
sections 9(b)(iii), (iv), (v) and (vi) on the receipt of
the Executive’s resignation from any and all positions which
he holds as an officer, director or committee member with respect
to the Company, the Bank or any subsidiary or affiliate of either
of them.
(c) The Executive, the
Company and the Bank acknowledge that each of the payments and
benefits promised to you under this Agreement must either comply
with the requirements of Section 409A and the regulations
thereunder or qualify for an exception from compliance. To that
end, the Executive, the Company and the Bank agree that the
termination benefits described in Section 9(b) are intended to
be exempt from Section 409A pur
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