EXHIBIT 10.10
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
This Amended and Restated Employment Agreement
(the “Agreement”) is made effective as of the 18th day
of December, 2008 (the “Effective Date”) by and between
Colonial Bank, F.S.B. (the “Bank”), a federally
chartered stock savings bank, with its principal administrative
office at 85 West Broad Street, Bridgeton, New
Jersey 08302, and Edward J. Geletka
(“Executive”). Any reference to the
“Company” shall mean Colonial Bankshares, Inc., a
federal mid-tier stock holding company, which owns 100% of the
common stock of the Bank.
WHEREAS , Executive is currently employed as the
President and Chief Executive Officer of the Bank and the Company
pursuant to an employment agreement entered into on September 20,
2006 (the “Original Agreement”); and
WHEREAS , the Bank desires to amend and restate the
Original Agreement in order to make changes to comply with the
final regulations issued under Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”) in April 2007;
and
WHEREAS , Executive is willing to serve the Bank on the
terms and conditions hereinafter set forth and has agreed to such
changes; and
WHEREAS , the Board of Directors of the Bank and
Executive believe it is in the best interests of the Bank to enter
into this Agreement in order to reinforce and reward Executive for
his service and dedication to the continued success of the Bank and
incorporate the changes required by the final regulations issued
under Code Section 409A.
NOW, THEREFORE , in consideration of the mutual covenants
herein contained, and upon the other terms and conditions
hereinafter provided, the parties hereby agree as
follows:
1.
POSITION AND RESPONSIBILITIES
During the period of his employment hereunder,
Executive agrees to serve as President and Chief Executive Officer
of the Bank and President and Chief Executive Officer of the
Company. During the period of his employment hereunder, except for
periods of absence occasioned by illness, reasonable vacation
periods, and reasonable leaves of absence, Executive shall
faithfully perform his duties hereunder and shall perform the
administrative and management services for the Bank which are
customarily performed by persons in a similar executive officer
capacity. Executive shall be responsible for the overall
management of the Company and the Bank and shall be responsible for
establishing the business objectives, policies and strategic plan
of the Company and the Bank. Executive shall also be
responsible for providing leadership and direction to all
departments or divisions of the Company and the Bank, and shall be
the primary contact between the Board of Directors and the staff of
the Company and the Bank. Executive also agrees to
serve, if elected, as an officer and director of any subsidiary or
affiliate of the Bank or the Company.
The term of
this Agreement and the period of Executive’s employment
hereunder shall begin as of the date first above written and shall
continue for thirty-six (36) full calendar months thereafter,
provided that all changes intended to comply with Code Section 409A
shall be retroactively effective to September 20, 2006; and
provided further that no retroactive change shall affect the
compensation or benefits previously provided to
Executive. Commencing on the Effective Date and
continuing on each anniversary date thereafter (the
“Anniversary Date”), this Agreement shall renew for an
additional year such that the remaining term shall be three (3)
years unless written notice of non-renewal (“Non-Renewal
Notice”) is provided to Executive at least thirty (30) days
and not more than sixty (60) days prior to any such Anniversary
Date. At least thirty (30) days prior to each
Anniversary Date the disinterested members of the Board of
Directors of the Bank (the “Board”) will conduct a
comprehensive performance evaluation and review of Executive for
purposes of determining whether to extend the Agreement, and the
results thereof shall be included in the minutes of the
Board’s meeting.
3.
COMPENSATION AND REIMBURSEMENT
(a) The
compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in
Section 1. The Bank shall pay Executive as
compensation a salary of not less than $192,864 per year
(“Base Salary”). During the period of this
Agreement, Executive’s Base Salary shall be reviewed at least
annually; the first such review will be made no later than January
31 of each year during the term of this Agreement and shall be
effective from the first day of said month through the end of the
calendar year. Such review shall be conducted by a
Committee designated by the Board, and the Board may increase, but
not decrease, Executive’s Base Salary (any increase in Base
Salary shall become the “Base Salary” for purposes of
this Agreement). In addition to the Base Salary provided
in this Section 3(a) , the
Bank shall provide Executive with all such other benefits as are
provided uniformly to permanent full-time employees of the Bank, on
the same basis (including cost) as such benefits are provided to
other officers of the Bank.
(b) In
addition to base salary provided for in Section 3(a) above, the
Bank will provide Executive with employee benefit plans,
arrangements and perquisites substantially equivalent to those in
which Executive was participating or otherwise deriving benefit
from immediately prior to the beginning of the term of this
Agreement, and the Bank will not, without Executive’s prior
written consent, make any changes in such plans, arrangements or
perquisites which would adversely affect Executive’s rights
or benefits thereunder. Without limiting the generality
of the foregoing provisions of this Section 3(b), 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, employee stock ownership plans, stock plans,
health-and-accident plans, medical coverage or any other employee
benefit plan or arrangement made available by the Bank in the
future to its senior executives and key management employees,
subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and
arrangements. Executive will be entitled to incentive
compensation and bonuses as provided in any plan of the Bank in
which Executive is eligible to participate (and he shall be
entitled to a pro rata distribution under any incentive
compensation or bonus plan as to any year in which a termination of
employment occurs, other than Termination for
Cause). 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) Executive
shall be entitled to paid time off in accordance with the standard
policies of the Bank for senior officers, but in no event less than
thirty (30) days paid time off during each year of
employment. Executive shall receive his Base Salary and
other benefits during periods of paid time
off. Executive shall also be entitled to paid legal
holidays in accordance with the policies of the
Bank. Executive shall also be entitled to sick leave in
accordance with the policies of the Bank, but in no event less than
the number of days of sick leave per year to which Executive was
entitled at the Effective Date of this Agreement.
Executive may serve as a member of the board of
directors of business, community and charitable organizations
subject in each case to the prior approval of the Board, provided
that in each case such service shall not materially interfere with
the performance of his duties under this Agreement or present any
conflict of interest. Executive shall provide to the
Board annually a list of all organizations for which Executive
serves as a director or in a similar capacity for purposes of
obtaining the Board’s approval of Executive’s service
on the boards of such organizations. Such service to and
participation in outside organizations shall be presumed for these
purposes to be for the benefit of the Bank, and the Bank shall
reimburse Executive his reasonable expenses associated therewith,
provided such expenses are consistent with and reimbursement is
made pursuant to the Bank’s expense policy, and is paid as
soon as practicable but not later than March 15 of the year
immediately following the year in which the expense was
incurred. Executive will provide to the Chairman of the
Bank or a committee of the Board of Directors of the Bank at least
quarterly a list of expenses incurred by Executive pursuant to this
Section 4, for purposes of determining the reasonableness of
such expenses.
5.
WORKING FACILITIES AND EXPENSES
Executive’s principal place of employment
shall be at the Bank’s principal executive
offices. The Bank shall provide Executive, at his
principal place of employment, with a private office, stenographic
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 duties under this
Agreement. The Bank shall provide Executive with an
automobile suitable to the position of President and Chief
Executive Officer of the Bank, and such automobile may be used by
Executive in carrying out his duties under this
Agreement. The Bank shall reimburse Executive for the
cost of maintenance, use and servicing of such
automobile. The Bank shall reimburse Executive for his
ordinary and necessary business expenses incurred in connection
with the performance of his duties under this Agreement, including,
without limitation, fees for memberships in such clubs and
organizations that Executive and the Board mutually agree are
necessary and appropriate to further the business of the Bank, and
travel and reasonable entertainment expenses, provided such
expenses are consistent with and reimbursement is made pursuant to
the Bank’s expense policy. All reimbursements
under this Section 5 shall be paid as soon as practicable by the
Bank; provided, however, that no payment shall be made later than
March 15 of the year immediately following the year in which the
expense was incurred.
6.
PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
(a) The
provisions of this Section 6 shall apply upon the occurrence
of an Event of Termination (as herein defined) during
Executive’s term of employment under this
Agreement. As used in this Agreement, an “Event of
Termination” shall mean and include any one or more of the
following:
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the termination
by the Bank or the Company of Executive’s employment
hereunder for any reason other than (A) Disability, as defined in
Section 7(b) below, or Retirement, as defined in Section 7(a)
below, or (B) Termination for Cause, as defined in Section 8
hereof; or
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Executive’s resignation from the
Bank’s employ for Good Reason. Good Reason shall
mean any of the following events:
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failure to
elect or reelect or to appoint or reappoint Executive as President
and Chief Executive Officer;
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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
attributes thereof described in Section 1, above;
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liquidation or
dissolution of the Bank or Company other than liquidations or
dissolutions that are caused by reorganizations that do not affect
the status of Executive;
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material
reduction in Executive’s Base Salary or relocation of
Executive’s principal place of employment by more than 25
miles from its location as of the date of this Agreement;
or
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material breach
of this Agreement by the Bank.
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Upon the
occurrence of any event described in clauses (ii) (A), (B),
(C), (D) or (E), above, Executive shall have the right to elect to
terminate his employment under this Agreement by resignation within
ninety (90) days after the initial event giving rise to said right
to elect. The Bank shall have at least thirty (30) days
to remedy any event set forth in clauses (ii)(A) through (E) above;
provided, however, that the Bank shall be entitled to waive such
period and make an immediate payment hereunder. If the
Bank remedies the event within such thirty (30) day cure period,
then no Good Reason shall be deemed to exist with respect to such
event. If the Bank does not remedy the event within such
thirty (30) day cure period, then Executive may deliver a Notice of
Termination, as defined in Section 9(a) below, for Good Reason at
any time within sixty (60) days following the expiration of such
cure period. Notwithstanding the preceding sentence, in
the event of a continuing breach of this Agreement by the Bank,
Executive, after giving due notice within the prescribed time frame
of an initial event specified above, shall not waive any of his
rights solely under this Agreement and this Section 6 by
virtue of the fact that Executive has submitted his resignation but
has remained in the employment of the Bank and is engaged in good
faith discussions to resolve any occurrence of an event described
in clauses (A), (B), (C), (D) or (E), above.
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Executive’s involuntary termination by the
Bank or the Company on the effective date of, or at any time
following, a Change in Control, or (B) Executive’s
resignation from employment with the Bank or the Company following
a Change in Control as a result of the Bank’s (or any
successor thereto) failure to renew or extend this Agreement, or
(C) Executive’s resignation from employment with the
Bank or the Company (or any successor thereto) following a Change
in Control for Good Reason. For these purposes, a Change
in Control of the Bank or the Company shall mean a change in
control of a nature that: (i) would be required to be reported in
response to Item 5.01 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 (the “Exchange
Act”); or (ii) without limitation such a Change in Control
shall be deemed to have occurred at such time as (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 Company representing
25% or more of the combined voting power of Company’s
outstanding securities, except for any securities purchased by the
Bank’s employee stock ownership plan or trust; or (b)
individuals who constitute the Board on the date hereof (the
“Incumbent Board”) cease for any reason to constitute
at least a majority thereof, provided that any person
becoming a director subsequent to the date hereof 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
the Company’s stockholders was approved by the same
Nominating Committee serving under an Incumbent Board, shall be,
for purposes of this clause (b), considered as though he were
a member of the Incumbent Board; or (c) a plan of reorganization,
merger, consolidation, sale of all or substantially all the assets
of the Bank or the Company or similar transaction in which the Bank
or Company is not the surviving institution occurs or is effected;
or (d) a tender offer is made for 25% or more of the
voting securities of the Company and the shareholders owning
beneficially or of record 25% or more of the outstanding securities
of the 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. Notwithstanding anything
in this subsection to the contrary, a Change in Control shall not
be deemed to have occurred upon the conversion of the
Company’s mutual holding company parent to stock form, or in
connection with any reorganization used to effect such a
conversion.
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