Exhibit 10.29
Execution
Copy
BANKFINANCIAL, F.S.B.
AMENDED AND
RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (this “ Agreement ”) is made
effective as of May 6, 2008 (the “ Effective Date
”), by and between BankFinancial, F.S.B. (the “
Bank ”), a federally chartered stock savings bank
having its principal office at 21110 South Western Avenue, Olympia
Fields, Illinois, and Elizabeth Doolan (“
Executive ”).
WHEREAS , the Bank and the Executive have previously
entered into an Employment Agreement dated March 31, 2005 (the
“ Initial Agreement ”);
WHEREAS , the Board of Directors of the Bank (the
“ Board ”) considers the continued availability
of Executive’s services to be important to the successful
management and conduct of the Bank’s business, and wishes to
assure the continued availability of Executive’s full-time
services to the Bank as provided in this Agreement; and
WHEREAS , Executive is willing to continue to serve in
the employ of the Bank 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:
1. POSITION AND
RESPONSIBILITIES .
(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 Bank and
its parent company, BankFinancial Corporation (“ BFC
” or the “ Company ”).
(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, or any person designated
by her, has assigned and may hereafter assign to
Executive.
(c) Faithful Performance . Except for
periods of paid time off taken in accordance with Section 3(f)
hereof or following a Disability Determination made in accordance
with Section 4(b) hereof, or for services performed for the
Bank’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 Bank or
BFC; provided that, notwithstanding the foregoing, Executive may:
(i) perform her obligations under any employment agreement
hereafter entered into between BFC and Executive (the “
BFC Agreement ”); and (ii) hold directorships,
offices or other positions in one or more other organizations to
the extent permitted by the Bank’s Professional
Responsibility Policy, as amended from time to time, or as
otherwise approved by the Board or the Chairman and Chief Executive
Officer; and (iii) engage in the occasional practice of public
accounting provided that the same does not interfere with
Executive’s obligation to devote substantially all of her
business time, attention, skill and efforts to the faithful
performance of her duties under this Agreement.
(d) Performance Standards . During the
Employment Period, Executive shall perform her duties in accordance
with the policies and procedures of the Bank, as amended from time
to time, such reasonable performance standards as the Board or the
Chief Executive Officer of the Bank has established or may
hereafter establish in the exercise of good faith business
judgment, including those set forth in the Bank’s Personnel
Manual, as amended from time to time, and such Business Plans as
the Board or the Chief Executive Officer of the Bank has
established or may hereafter establish in the exercise of good
faith business judgment.
2. TERM OF EMPLOYMENT
.
(a) Term . The Employment Period shall
commence on 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 (1) year so that the remaining term of the
Employment Period shall 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.
3. COMPENSATION AND OTHER
BENEFITS .
(a) Base Salary . During the
Employment Period, the Bank shall pay Executive the annual base
salary that is reflected in the payroll records of the Bank 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 Bank. 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 in, 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 Bank or BFC 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 Bank 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 Bank
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 Bank 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
Bank shall pay or reimburse Executive in accordance with the
standard policies and practices of the Bank for all reasonable
expenses incurred by Executive during the Employment Period in
connection with her employment hereunder or the business of the
Bank; 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.
(f) 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 Bank
as then applicable to senior executive officers of the Bank.
Executive shall also be entitled to take time off during all legal
holidays approved by the Board for Bank 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 Bank, 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 Bank shall
provide Executive with all other benefits that are now or hereafter
provided uniformly to non-probationary full-time employees of the
Bank 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 Bank (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 Bank, in each case subject to the Bank’s
policies concerning employee payments and contributions under such
plans. The Bank 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 full-time employees of the Bank 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.
(h) Disability Insurance . During the
Employment Period, the Bank 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
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shall be responsible for the payment of all
premiums on the Disability Policy and shall cooperate with the Bank
in all respects as necessary or appropriate to enable the Bank to
procure the Disability Policy, and the Bank 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 Bank’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
Bank of the receipt of Disability Payments.
4. TERMINATION BY THE BANK
.
(a) Termination For
Cause . The Board may terminate Executive’s
employment with the Bank “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
Bank’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 1(d) 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 1(d) of this Agreement, or a repeated
and material failure of Executive to meet reasonable performance
standards established in accordance with Section 1(d) of this
Agreement, providing Executive with a reasonable opportunity to
cure, if curable, any conduct or acts alleged to be such;
(iii) following 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 Ban
for Cause if Executive’s employment with BFC is terminated
For Cause during the Employment Period in accordance with the
requirements set forth in the BFC Agreement.
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(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 Bank 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 Bank 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 Bank based on
a “Disability Determination” if Executive’s
employment with BFC is terminated during the Employment Period
based on a “Disability Determination” in accordance
with the requirements set forth in Section 4(b) of the BFC
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 Bank.
(c) Termination Without
Cause . The Board, in its discretion, may terminate
Executive’s employment with the Bank “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 Bank Without Cause
if Executive’s employment with BFC is terminated during the
Employment Period “Without Cause” in accordance with
the requirements set forth in the BFC Agreement.
(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
”).
5. TERMINATION BY EXECUTIVE OR
BY REASON OF DEATH .
(a) Termination By
Resignation . Executive may, in her discretion, terminate
her employment with the Bank “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 Bank, and to have terminated her
employment with the Bank By Resignation, if Executive’s
employment with BFC is terminated during the Employment Period By
Resignation in accordance with the requirements set forth in the
BFC Agreement.
(b) Termination For Good
Reason . Executive may terminate Executive’s
employment with the Bank 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 Bank’s employ during
the Employment Period based upon any of the following reasons, but
only if taken or occurring
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during the Employment Period without
Executive’s 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 Bank; (ii) the
Board’s relocation of Executive’s principal place of
employment to a place that is located more than twenty-five
(25) miles from Burr Ridge, Illinois;; (iii) a reduction
in Executive’s Base Salary; (iv) a liquidation or
dissolution of the Bank; (v) a material uncured breach of this
Agreement by the Bank; (vi) Executive’s termination of
her employment with BFC for “ Good Reason ” as
defined in the BFC Agreement; and (vii) BFC’s
termination of Executive’s employment with BFC “Without
Cause” as defined in the BFC 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 Bank 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 Bank
following a Disability Determination made in accordance with
Section 4(b) of this Agreement, or (ii) if the Bank 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 Bank for Good Reason if
Executive’s employment with BFC is terminated during the
Employment Period for Good Reason in accordance with the
requirements set forth in the BFC Agreement.
(c) Termination Upon
Death . Executive’s employment with the Bank 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.
6. FINANCIAL CONSEQUENCES OF
TERMINATION .
(a) Termination For
Cause . In the event that Executive’s employment is
terminated For Cause during the Employment Period, the Bank 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 Bank 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
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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; and
(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 date the
Employment Period would have expired if Executive’s
employment had not been sooner terminated based on a Disability
Determination (subject to payment of the costs and contributions
that such plans provide are the responsibility of the insured
employee). Amounts payable under Subsections (ii) and
(iv) of this Section 6(b) shall be paid in equal
installments over the period beginning on the Bank’s first
regular payroll date after the effective date of termination and
continuing through the Bank’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.
(c) Termination Without
Cause . In the event that Executive’s employment is
terminated Without Cause during the Employment Period, the Bank
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; and (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 date
the Employment Period would have expired if Executive’s
employment had not been sooner terminated Without Cause (subject to
payment of the costs and contributions that such plans provide are
the responsibility of the insured employee). Amounts payable under
Subsections (ii) and (iv) of this Section 6(c) shall
be paid in equal installments over the period beginning on the
Bank’s first regular payroll date after the effective date of
termination and continuing through the Bank’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” amount described in
Treasury Regulation Section 1.409A-1(b)(9)(iii)(A), the
Executive shall receive such portion of the applicable payment that
exceeds the “safe harbor” amount in a single lump sum
payment payable within five (5) days after the
Executive’s termination.
(d) Termination By
Resignation . In the event that Executive’s full-time
employment is terminated By Resignation during the Employment
Period, the Bank shall pay Executive her Earned Salary (as defined
above), but Executive shall receive no compensation or other
benefits (including the compensation and benefits set forth in
Section 3(a) through Section 3(j) 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
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applicable state or federal law, the provisions
of any contract, employee benefits plan or otherwise, shall not be
terminated or prejudiced by a termination By
Resignation.
(e) Termination for Good
Reason . In the event that Executive’s employment is
terminated by Executive for Good Reason during the Employment
Period, the Bank shall pay Executive the same amounts that
Executive would have been paid pursuant to Sections 6(c)(i), (ii),
(iii) and (iv), and shall provide Executive (and upon her
death her surviving spouse and minor children, if any) with the
same coverages under the Core Plans coverage that Executive (and
her spouse and minor children, if any) would have been provided
pursuant to 6)c)(v) (subject to the payment of the costs and
contributions that such plans provide are the responsibility of the
insured employee) if Executive’s employment had been
terminated by the Bank Without Cause on the effective date of the
termination of Executive’s employment. Amounts payable under
this Section 6(e) shall be paid in equal installments over the
period
