Exhibit 10.28
BANKFINANCIAL CORPORATION
EMPLOYMENT AGREEMENT
THIS AGREEMENT
(“Agreement”) is made effective as of October 20,
2008 (the “Effective Date”), by and between
BankFinancial Corporation, (the “Company”), a Maryland
corporation having its principal office at 15 W 060 North Frontage
Road, Burr Ridge, Illinois, and Elizabeth Doolan
(“Executive”).
WHEREAS, the Board of Directors of
the Company (the “Board”) considers the continued
availability of Executive’s services to be important to the
successful management and conduct of the Company’s business,
and wishes to assure the continued availability of
Executive’s full-time services to the Company as provided in
this Agreement; and
WHEREAS, Executive is willing to
continue to serve in the employ of the Company on a full-time basis
on the terms and conditions set forth herein.
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:
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1.
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POSITION AND
RESPONSIBILITIES .
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(a) Position . During the
period of employment established by Section 2(a) of this
Agreement (the “Employment Period”), Executive agrees
to serve, if appointed to serve, as the Senior Vice President and
Controller, Accounting Department, Finance Division of the Company
and BankFinancial, F.S.B. (the “Bank”).
(b) Duties and
Responsibilities . Executive shall have and exercise the
duties, responsibilities, privileges, powers and authority
commensurate with such position as the Board or the Chief Executive
Officer of the Company, has assigned and may hereafter assign to
Executive.
(c) Faithful Performance .
Except for periods of paid time off taken in accordance with
Section 3(t) hereof or following a Disability Determination
made in accordance with Section 4(b) hereof, or for services
performed for the Company’s Affiliates (as defined below)
Executive shall devote substantially all of her business time,
attention, skill and efforts during the Employment Period to the
faithful performance of her duties hereunder, and shall not engage
in any business or activity that interferes with the performance of
such duties or conflicts with the business, affairs or interests of
the Company or the Bank; provided that, notwithstanding the
foregoing, Executive may: (i) perform her obligations under
any employment agreement hereafter entered into between the Bank
and Executive (the “Bank Agreement”); and
(ii) hold directorships, offices or other positions in one or
more other organizations to the extent permitted by the
Company’s Professional Responsibility Policy, as amended from
time to time, or as otherwise approved by the Board or the Chairman
and Chief Executive Officer.
(d) Performance Standards .
During the Employment Period, Executive shall perform her duties in
accordance with the policies and procedures of the Company, as
amended from time to time, such reasonable performance standards as
the Board or the Chief Executive Officer of the Company has
established or may hereafter establish in the exercise of good
faith
business judgment, including those set forth in
the Company’s Personnel Manual, as amended from time to time,
and such Business Plans as the Board or the Chief Executive Officer
of the Company has established or may hereafter establish in the
exercise of good faith business judgment.
(a) Term . The Employment
Period shall commence as of the Effective Date and shall thereafter
continue for a period of twenty-four (24) months unless
extended as provided herein. On or before each anniversary of the
Effective Date during the Employment Period (each an
“Anniversary Date”), the Board, subject to the review
process set forth in Section 2(b) hereof, may extend the
Employment Period for an additional one (I) year so that the
remaining term of the Employment Period shall then be twenty-four
(24) months. All references herein to the Employment Period
shall mean, for all purposes of this Agreement, Executive’s
Employment Period as initially established by, and as may
subsequently be extended pursuant to, this
Section 2(a).
(b) Annual Review . The Board
or the Board’s Human Resources Committee (the “Human
Resources Committee”) shall review this Agreement and the
compensation arrangements provided for herein at least annually on,
before or within a reasonable time (not to exceed forty-five
(45) days) after each Anniversary Date. As part of each annual
review, the Board or the Human Resources Committee shall determine
whether or not to increase Executive’s Base Salary as
provided in Section 3(a) hereof and to extend the Employment
Period for an additional one (1) year as provided in
Section 2(a) hereof. The rationale and results of such review,
and the justification for any such increase or extension, shall be
documented in the minutes of the meeting at which the Board or the
Human Resources Committee conducted such review, or in any written
performance reviews referenced in such minutes. The Board, the
Human Resources Committee or a person designated by either of them
shall notify Executive in writing as soon as practicable, and not
later than forty-five (45) days, after each applicable
Anniversary Date, of the results of such review, including its
decision whether or not to increase Executive’s Base Salary
and to extend the Employment Period. A decision by or the failure
of the Board or the Human Resources Committee to increase
Executive’s Base Salary and/or to extend the Employment
Period shall not constitute a breach of this Agreement or a
“Good Reason” under Section 5(b) hereof. All
decisions and actions of the Human Resources Committee pursuant to
this Section 2(b) shall be subject to ratification by the
Board only to the extent, if any, that ratification may be required
by applicable laws and regulations.
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3.
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COMPENSATION
AND OTHER BENEFITS .
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(a) Base Salary . During the
Employment Period, the Company shall pay Executive the annual base
salary that is reflected in the payroll records of the Company on
the Effective Date (“Base Salary”), subject to any
discretionary increases that the Board may hereafter elect to make
pursuant to this Section 3(a). Executive’s Base Salary
shall be payable in accordance with the regular payroll practices
of the Company. The Board or the Human Resources Committee may
increase Executive’s Base Salary at any time, but shall not
reduce Executive’s Base Salary during the Employment Period
without the Executive’s express prior written consent. All
references herein to Base Salary shall mean, for all purposes of
this Agreement, Executive’s Base Salary as initially
established ill, and as may subsequently be increased pursuant to,
this Section 3(a).
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(b) Bonuses; Incentive
Compensation . In addition to Executive’s Base Salary,
Executive shall be entitled to any cash or equity-based incentive
compensation and bonuses to the extent earned pursuant to any plan
or arrangement of the Company or the Bank in which Executive is
eligible to participate during the Employment Period, or to such
other extent as the Board or its Human Resources Committee may
determine in its discretion to award to Executive.
(c) Other Compensation . The
Company may provide such additional compensation to Executive in
such form and in such amounts as may be approved by the Board or
the Human Resources Committee in its sole discretion.
(d) Special Allowances . The
Company shall provide Executive with either the use of an
automobile or an automobile allowance and either the use of a
cellular telephone or a cellular telephone allowance during the
Employment Period in accordance with the standard policies and
practices of the Company and consistent with that provided to
Executive as of the Effective Date; provided that the allowance for
a given year must be paid to the Executive not later than 2.5
months after the end of such year.
(e) Reimbursement of Expenses
. The Company shall payor reimburse Executive in accordance with
the standard policies and practices of the Company for all
reasonable expenses incurred by Executive during the Employment
Period in connection with her employment hereunder or the business
of the Company; provided that such payment or reimbursement must
occur not later than 2.5 months after the end of the year in which
such expense was incurred.
(1) Paid Time Off . Executive
shall be entitled to receive not less than 176 hours of paid time
off (“PTO”) per calendar year during the Employment
Period in accordance with the PTO policies of the Company as then
applicable to senior executive officers of the Company. Executive
shall also be entitled to take time off during all legal holidays
approved by the Board for Company employees generally. Executive
shall receive her Base Salary and the other amounts and benefits
provided for in Section 3 hereof during all PTO periods and
legal holidays. Except as permitted by the PTO policies of the
Company, Executive shall not be entitled to receive any additional
compensation for her failure to take PTO or accumulate unused PTO
from one year to the next.
(g) Other Benefits . The
Company shall provide Executive with all other benefits that are
now or hereafter provided uniformly to non-probationary full-time
employees of the Company during the Employment Period, including,
without limitation, benefits under any Section 125 Cafeteria
Plan, any group medical, dental, vision, disability and life
insurance plans that are now or hereafter maintained by the Company
(collectively, the “Core Plans”), and under any 401(k)
plan (“401(k) Plan”) and Employee Stock Ownership Plan
(“ESOP”) that is now or hereafter sponsored by the
Company, in each case subject to the Company’s policies
concerning employee payments and contributions under such plans.
The Company shall not make any changes to any Core Plan that would
materially and adversely affect Executive’s rights or
benefits under such plan unless such changes are made applicable to
all non-probationary fulltime employees of the Company on a
non-discriminatory basis. Nothing paid to Executive under any Core
Plan or any 401(k) Plan or ESOP shall be deemed to be in lieu of
any other compensation that Executive is entitled to receive under
this Agreement.
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(h) Disability Insurance .
During the Employment Period, the Company may provide Executive
with a disability insurance policy with coverage sufficient to
provide Executive with annual disability insurance payments in an
amount up to sixty percent (60%) of Executive’s Base
Salary for a period at least equal to the then remaining term of
the’ Employment Period (the “Disability Policy”)
in the event that Executive’s employment is terminated by
reason of a Disability Determination (as defined below). If a
Disability Policy is so provided, Executive shall be responsible
for the payment of all premiums on the Disability Policy and shall
cooperate with the Company in all respects as necessary or
appropriate to enable the Company to procure the Disability Policy,
and the Company shall provide Executive with an annual allowance in
an amount sufficient, on an after-tax basis, to equal the annual
premiums for the Disability Policy; provided that the allowance for
a given year must be paid to the Executive not later than 2.5
months after the end of the year in which such premiums are
paid.
(i) Disability Insurance
Adjustment . If Executive receives disability benefits under
the Disability Policy or any Core Plan or receives federal Social
Security disability benefits (collectively, “Disability
Payments”), the Company’s obligation under
Section 3(a) and 6(b) hereof to pay Executive her Base Salary
shall be reduced, as of the date the Disability Payments are first
received by Executive, to an amount equal to the difference between
Executive’s Base Salary and the Disability Payments that
Executive received during each applicable payroll period. The
Executive shall make reasonable good faith efforts to notify the
Company of the receipt of Disability Payments.
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4.
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TERMINATION
BY THE COMPANY .
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(a) Termination For Cause .
The Board may terminate Executive’s employment with the
Company “For Cause” at any time during the Employment
Period, subject to the requirements set forth in this
Section 4(a) and in Section 7 of this Agreement. A
termination “For Cause” shall mean the Company’s
termination of Executive’s full-time employment hereunder
because of Executive’s personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful
violation of any law, rule or regulation (other than traffic
violations or similar offenses), or final cease-and-desist order, a
repeated and material failure to achieve minimum objectives under a
Business Plan established in accordance with Section 1
(d) of this Agreement, a repeated and material failure of
Executive to meet reasonable performance standards established in
accordance with Section led) of this Agreement, or a material
breach of any provision of this Agreement. Notwithstanding the
foregoing, Executive shall not be deemed to have been terminated
For Cause unless and until (i) there shall have been delivered
to Executive a written notice of the Board’s intention to
terminate Executive’s employment For Cause, specifying the
alleged grounds for such termination; (ii) if the alleged
grounds for such termination are a material breach of this
Agreement, a repeated and material failure to achieve minimum
objectives under a Business Plan established in accordance with
Section I (d) of this Agreement, or a repeated and material
failure of Executive to meet reasonable performance standards
established in accordance with Section led) of this Agreement,
providing Executive with a reasonable opportunity to cure, if
curable, any conduct or acts alleged to be such;
(iii) following
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delivery of such written notice, Executive
(together with any counsel selected by her) shall have been given a
reasonable opportunity to present to the Board, at a meeting called
and held for or including that purpose, Executive’s position
regarding any dispute that exists regarding the alleged grounds for
termination For Cause; and (iv) the Board shall adopt a
resolution by the affirmative vote of not less than a majority of
its members, finding in good faith and on the basis of reasonable
evidence that Executive was guilty of conduct justifying a
termination For Cause. The Notice of Termination (as defined in
Section 7 below) issued in connection with the termination of
Executive’s employment For Cause shall be accompanied by a
copy of such resolution. Should a dispute arise concerning the
Executive’s termination For Cause, any review of the For
Cause termination in any judicial or arbitration proceeding will be
limited to a determination of whether the Board acted in good faith
and on the basis of reasonable evidence. The Board shall also be
deemed to have terminated Executive’s employment with the
Company For Cause if Executive’s employment with the Bank is
terminated For Cause during the Employment Period in accordance
with the requirements set forth in the Bank Agreement.
(b) Termination for
Disability . Upon a determination (a “Disability
Determination”) of Disability (as defined below), the Board,
in its discretion, may terminate Executive’s employment with
the Company at any time from and after the date of such Disability
Determination. Following a Disability Determination, the Board may,
in lieu of terminating Executive’s employment by reason of
the Disability Determination, appoint one or more other persons to
serve as Acting Senior Vice President and Controller, Accounting
Department, Finance Division of the Company to fulfill, on a
temporary basis, the duties and responsibilities of Executive. Any
such temporary appointment shall be without prejudice to the
Board’s right to thereafter terminate Executive’s
employment based on a Disability Determination made pursuant to
this Section 4(b) or as otherwise provided herein. The Board
shall also be deemed to have terminated Executive’s
employment with the Company based on a “Disability
Determination” if Executive’s employment with the Bank
is terminated during the Employment Period based on a
“Disability Determination” in accordance with the
requirements set forth in Section 4(b) of the Bank Agreement.
The term “Disability” shall mean that (i) the
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 can be
expected to last for a continuous period of not less than twelve
(12) months, or (ii) the Executive is, by reason of any
medically determinable physical or mental impairment that can be
expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months,
receiving income replacement benefits for a period of not less than
three months under an accident and health plan covering employees
of the Company.
(c) Termination Without Cause
. The Board, in its discretion, may terminate Executive’s
employment with the Company “Without Cause” at any
time, subject to the notification requirements set forth in
Section 7 hereof. A termination “Without Cause”
shall mean the Board’s termination of Executive’s
employment for any reason other than a termination For Cause or a
termination based on a Disability Determination or death. The Board
shall also be deemed to have terminated Executive’s
employment with the Company Without Cause if Executive’s
employment with the Bank is terminated during the Employment Period
“Without Cause” in accordance with the requirements set
forth in the Bank Agreement.
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(d) Termination under Code
Section 409A . Any termination described in this
Section 4 will only be deemed to have occurred if such
termination constitutes a “separation from service” as
defined under Section 409A of the Internal Revenue Code of
1986, as amended, or any successor thereto (the
“Code”).
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5.
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TERMINATION
BY EXECUTIVE OR BY REASON OF DEATH .
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(a) Termination By
Resignation . Executive may, in her discretion, terminate her
employment with the Company “By Resignation” at any
time during the Employment Period, subject to the notification
requirements set forth in Section 7 hereof. A termination
“By Resignation” shall mean Executive’s
termination of her employment for any reason other than a
“Good Reason” as such term is defined in
Section 5(b) hereof. Executive shall also be deemed to have
resigned her employment with the Company, and to have terminated
her employment with the Company By Resignation, if
Executive’s employment with the Bank is terminated during the
Employment Period By Resignation in accordance with the
requirements set forth in the Bank Agreement.
(b) Termination For Good
Reason . Executive may terminate Executive’s employment
with the Company for “Good Reason,” subject to the
requirements set forth in this Section 5(b) and the
notification requirements set forth in Section 7 hereof. A
termination for “Good Reason” shall mean
Executive’s resignation from the Company’s employ
during the Employment Period based upon any of the following
reasons, but only if taken or occurring during the Employment
Period without Executive’s prior written consent: (i) a
decision by the Board not to elect or re-elect or to appoint or
re-appoint Executive to the office of Senior Vice President and
Controller, Accounting Department, Finance Division of the Company;
(ii) the Board’s relocation of Executive’s
principal place of employment to a place that is more than forty
(40) miles from the principal office of the Company located at
15 W 060 North Frontage Road, Burr Ridge, Illinois; (iii) a
reduction in Executive’s Base Salary; (iv) a material
uncured breach of this Agreement by the Company;
(v) Executive’s termination of her employment with the
Bank for “Good Reason” as defined in the Bank
Agreement; and (vi) the Bank’s termination of
Executive’s employment with “Without Cause” as
defined in the Bank Agreement. Executive shall have the right to
elect to terminate her employment for Good Reason only by giving
the Chairman and Chief Executive Officer of the Company a Notice of
Termination (as defined below) within sixty (60) days after
the act, omission or event giving rise to said right to elect.
Notwithstanding the foregoing, Executive shall not have a right to
elect to terminate her employment (i) based on the events set
forth in this Section 5(b) solely on the basis of the
Board’s appointment of an Acting Senior Vice President and
Controller, Accounting Department, Finance Division of the Company
following a Disability Determination made in accordance with
Section 4(b) of this Agreement, or (ii) if the Company
fully rescinds or cures, within ten (10) days after its
receipt of Executive’s Notice of Termination, the act,
omission or event giving rise to Executive’s right to elect
to terminate her employment for Good Reason. Executive shall also
be deemed to have terminated her employment with the Company for
Good Reason if Executive’s employment with the Bank is
terminated during the Employment Period for Good Reason in
accordance with the requirements set forth in the Bank
Agreement.
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(c) Termination Upon Death .
Executive’s employment with the Company shall terminate
immediately upon Executive’s death, without regard to the
notification requirements set forth in Section 7
hereof.
(d) Termination under Code
Section 409A . Any termination described in this
Section 5 will only be deemed to have occurred if such
termination constitutes a “separation from service” as
defined under Code Section 409A.
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6.
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FINANCIAL
CONSEQUENCES OF TERMINATION .
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(a) Termination For Cause .
In the event that Executive’s employment is terminated For
Cause during the Employment Period, the Company shall pay Executive
the unpaid balance of Executive’s Base Salary through the
effective date of the termination of Executive’s employment
(“Earned Salary”), but Executive shall receive no bonus
or incentive compensation for the current year (all such amounts
shall remain unearned and unvested), and shall receive no
compensation or other benefits (including the compensation and
benefits set forth in Section 3(a) through Section 3(i)
and Section 6 hereof) for any period after the effective date
of the termination of Executive’s employment; provided,
however, that any rights of Executive under any applicable
state and federal laws, including ERISA and COBRA, and any rights
of Executive that have vested, whether by application of any state
or federal law, the provisions of any contract, employee benefits
plan or otherwise, shall not be terminated or prejudiced by a
termination For Cause. Upon Executive’s death, any payments
due under this Section 6(a) shall be paid, as applicable, to
Executive’s estate, trust or as otherwise required by
law.
(b) Termination for
Disability . In the event that Executive’s employment is
terminated during the Employment Period based on a Disability
Determination, the Company shall: (i) pay Executive her Earned
Salary (as defined above); (ii) pay Executive an amount equal
to the cash incentive compensation, if any, that the Board
determines in its sole and absolute discretion that Executive is to
receive during the current year based on Executive’s
demonstrable achievement of the objectives set forth in
Executive’s incentive compensation program for the current
year, prorated based on the number of days during such year that
elapsed prior to the effective date of the termination of
Executive’s employment (“Prorated Incentive
Compensation”); (iii) make, for the benefit of
Executive, the matching 401 (k) plan contribution that
Executive is entitled to receive for the current year, prorated
based on the number of days during such year that elapsed prior to
the effective date of the termination of Executive’s
employment (“Accrued Plan Contribution”);
(iv) subject to the disability insurance adjustment set forth
in Section 3(i) hereof, pay Executive the Base Salary that
Executive would have been paid pursuant to Section 3(a) hereof
from the effective date of termination through the date the
Employment Period would have expired if Executive’s
employment had not been sooner terminated based on a Disability
Determination; (v) provide Executive (and upon her death her
surviving spouse and minor children, if any) with the same coverage
under the Core Plans that Executive (and her surviving spouse and
minor children, if any) would have been provided pursuant to
Section 3(g) hereof from the effective date of termination
through the third anniversary of termination based on a Disability
Determination (subject to payment of the costs and contributions
that such plans provide are the responsibility of the insured
employee); and (vi) provide Executive (and her surviving
spouse and minor children, if any) with the health insurance
continuation benefits set forth in Section 6(g), beginning on
the date of the expiration
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of the health insurance coverage provided under
the Core Plans pursuant to Section 6(b)(v) (subject to the
payment of the costs specified therein). Amounts payable under
Subsections (ii) and (iv) of this Section 6(b) shall
be paid in equal installments over the period beginning on the
Company’s first regular payroll date after the effective date
of termination and continuing through the Company’s first
regular payroll date after the date the Employment Period would
have expired if Executive’s employment had not been sooner
terminated based on a Disability Determination.
(e) Termination Without Cause
. In the event that Executive’s employment is terminated
Without Cause during the Employment Period, the Company shall:
(i) pay Executive her Earned Salary (as defined above);
(ii) pay Executive her Prorated Incentive Compensation (as
defined above); (iii) make, for the benefit of Executive, the
Accrued Plan Contribution (as defined above); (iv) pay
Executive the Base Salary that Executive would have been paid
pursuant to Section 3(a) hereof from the effective date of
termination through the date the Employment Period would have
expired if Executive’s employment had not been sooner
terminated Without Cause; (v) provide Executive (and upon her
death her surviving spouse and minor children, if any) with
coverage under the Core Plans that Executive would have been
provided pursuant to Section 3(g) from the effective date of
the termination of Executive’s employment through the third
anniversary of the date the Executive’s employment terminated
Without Cause (subject to payment of the costs and contributions
that such plans provide are the responsibility of the insured
employee) and (vi) provide Executive (and her spouse and minor
children, if any) with the health insurance continuation benefits
set forth in Section 6(g) beginning on the expiration date of
the health insurance coverage provided under the Core Plans
pursuant to Section 6(c)(v) (subject to the payment of the
costs specified therein). Amounts payable under Subsections
(ii) and (iv) of this Section 6(c) shall be paid in
equal installments over the period beginning on the Company’s
first regular payroll date after the effective date of termination
and continuing through the Company’s first regular payroll
date after the date the Employment Period would have expired if
Executive’s employment had not been sooner terminated Without
Cause; provided, however, to the extent any portion of the
applicable payment amount under this subsection 6( c) exceeds the
“safe harbor” am