Exhibit 10.1
EMPLOYMENT AGREEMENT
This
Employment Agreement (the "Agreement") is made effective as of July
1,
2008 (the "Effective Date"), by and between Beacon Federal, a federally
chartered savings
association with its
principal office in East Syracuse, New
York (the "Bank") and Randy Wiley ("Executive").
WHEREAS, Executive is
serving as a senior officer of the Bank and the Bank
wishes to assure
itself of the services
of Executive as an officer of the Bank
for the period provided in this Agreement; and
WHEREAS, in order to
induce Executive to
remain in the employ of the Bank
and to provide further
incentive for Executive to achieve the
financial and
performance objectives
of the Bank,
the parties desire to enter into this
Agreement.
NOW,
THEREFORE, in
consideration of the mutual covenants herein contained,
and upon the terms and conditions hereinafter provided, the parties
hereby agree
as follows:
1. POSITION AND
RESPONSIBILITIES.
During the term of this Agreement, Executive shall serve as Senior Vice
President of the
Bank. Executive shall be responsible for asset/liability
management, management
of the securities
portfolio and investor relations, as
well as such other
duties as are assigned to him from time to time by the Chief
Executive Officer.
Executive shall directly report to the Chief Executive
Officer.
2. TERM AND
DUTIES.
(a)
Two Year Contract;
Annual Renewal. The term of Executive's employment
under this Agreement
shall commence as of the Effective Date and shall continue
thereafter for a
period of two (2) years. Commencing on the first
anniversary
date of this Agreement (the "Anniversary Date") and continuing on each
Anniversary Date
thereafter,
the term of this
Agreement shall renew for an
additional year such that the remaining term of this Agreement is
always two (2)
years, unless written notice of non-renewal (a "Non-Renewal
Notice") is provided
to Executive
at least thirty (30)
days and not more than sixty (60) days prior
to such Anniversary
Date, in which case the term of this Agreement shall become
fixed and shall end three (3) years following such Anniversary Date. The Chief
Executive Officer will conduct a performance evaluation and review of
Executive
annually for purposes
of determining
whether to give notice
not to extend the
term of this Agreement, and the results thereof shall be included
in the minutes
of the next Board meeting.
(b)
Termination of Agreement. Notwithstanding anything contained in this
Agreement to
the contrary, either Executive or the Bank may terminate
Executive's employment
with the Bank at any time during the term of this
Agreement, subject to the terms and conditions of this
Agreement.
(c)
Continued Employment
Following Expiration of Term. Nothing in this
Agreement shall
mandate or prohibit a continuation of Executive's employment
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following the
expiration
of the term of this
Agreement,
upon such terms
and
conditions as the Bank and Executive may mutually agree.
(d)
Duties; Membership on
Other Boards. During the term of this Agreement,
except for
periods of
absence occasioned by illness, reasonable vacation
periods, and reasonable leaves of absence approved by the Board,
Executive shall
devote substantially all of his business time, attention,
skill, and efforts
to
the faithful performance of his duties hereunder; provided, however, that, with
the prior approval of
the Chief Executive
Officer, Executive may serve, or
continue to serve, on
the boards of directors of, and hold any other offices or
positions in, business companies or business organizations,
which, in the
Chief
Executive Officer's judgment, will not present any conflict of
interest with the
Bank, or materially
affect the performance
of Executive's duties
pursuant to
this Agreement. Executive shall provide the Chief Executive Officer
annually for
his approval a list of organizations for which the Executive acts as a
director
or officer.
3. COMPENSATION,
BENEFITS AND REIMBURSEMENT.
(a)
Base Salary. In consideration of Executive's performance of the duties
set forth in Section
2, the Bank
shall provide Executive the compensation
specified in this
Agreement. The Bank
shall pay Executive a salary of $130,000
per year ("Base
Salary"). The Base
Salary shall be payable biweekly, or with
such other frequency as officers of the Bank are generally paid.
During the term
of this Agreement,
the Base Salary shall
be reviewed at least
annually by the
Chief Executive Officer, and the Bank may increase, but not
decrease (except for
a decrease that is
generally applicable
to all employees) Executive's Base
Salary. Any increase
in Base Salary shall become "Base Salary" for purposes of
this Agreement.
(b)
Bonus and Incentive Compensation. Executive shall be entitled to
incentive compensation and bonuses as provided in any plan or
arrangement of the
Bank in which
Executive is eligible to participate. 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)
Employee Benefits.
The Bank shall
provide Executive with employee
benefit plans, arrangements and perquisites substantially
equivalent to those in
which Executive
was participating or from which he was deriving benefit
immediately prior to
the commencement of
the term of this
Agreement, and the
Bank shall not, without Executive's prior written consent,
make any changes
in
such plans,
arrangements or perquisites that would adversely affect
Executive's
rights or benefits
thereunder, except as
to any changes that are applicable to
all participating
employees or as reasonably or customarily available. Without
limiting the
generality of the
foregoing provisions of this Section 3(c),
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,
health-and-accident
insurance plans,
medical coverage or any other employee
benefit plan or
arrangement
made available by the Bank in the future to
its
senior executives,
including any stock benefit plans, subject to and on a basis
consistent with the terms, conditions and overall
administration of such
plans
and arrangements.
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(d)
Paid Time Off.
Executive shall be
entitled to paid vacation time each
year during the term of this Agreement (measured on a fiscal or calendar
year
basis, in accordance
with the Bank's usual
practices), as well as
sick leave,
holidays and other
paid absences in
accordance
with the Bank's
policies and
procedures for senior
executives.
Any unused paid time off during an annual
period shall be treated in accordance with the Bank's personnel policies as in
effect from time to time.
(e)
Expense
Reimbursements. During
the term of this
Agreement, the
Bank
shall pay Executive $650 per month for the full cost of the use of
an automobile
that is mutually
agreeable to the Bank and Executive. During the term of this
Agreement, the Bank
shall pay or reimburse Executive for all reasonable travel,
entertainment and
other reasonable
expenses incurred by Executive during
the
course of performing his obligations under this Agreement, including, without
limitation, fees for
memberships in such clubs and organizations as Executive
and the Chief Executive Officer shall mutually agree are necessary and
appropriate in
connection
with the performance of his duties under this
Agreement, upon presentation to the Bank of an itemized account of
such expenses
in such form as the Bank may reasonably require.
4. PAYMENTS TO
EXECUTIVE UPON AN EVENT OF TERMINATION.
(a)
Upon the occurrence
of an Event of
Termination
(as herein
defined)
during the term of this Agreement, the provisions of this Section 4
shall apply;
provided, however,
that benefits
shall be provided
either under Section 4
or
Section 5 (related
to a Change
in Control), but not both, such that to the
extent the Executive
has received payments
under one of those
Sections, the
Executive shall not receive payments under the other of those
Sections. As used
in this Agreement, an
"Event of Termination"
shall mean and include any one or
more of the following:
(i) the termination by
the Bank of Executive's full-time employment
hereunder for any reason other than a "Change in Control," as
defined in Section
5, a termination
for death or "Disability," as set forth in Section 6, a
termination upon
"Retirement,"
as defined in Section
7, or a termination
for
"Cause," as defined in Section 8; and
(ii) Executive's
resignation
from the Bank's employ
upon any of the
following, unless consented to by Executive:
(A) failure to appoint
Executive to the
position set forth in
Section 1,
or a 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
responsibilities
described in Section 1, to which Executive has not agreed in
writing (and any such
material change
shall be deemed a
continuing breach
of
this Agreement by the Bank);
(B) a relocation of Executive's principal place of employment
to
a location that is more than 50 miles from the location of the
Bank's principal
executive offices as of the date of this Agreement;
(C) a material reduction in the benefits and perquisites,
including Base
Salary, to Executive from those being provided as of the
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Effective Date (except
for any reduction that
is part of a reduction in pay or
benefits that is generally applicable to officers or employees of
the Bank);
(D) a liquidation or dissolution of the Bank; or
(E) a material breach of this Agreement by the Bank.
Upon the occurrence of any event described in clause (ii) above,
Executive shall
have the right to elect to terminate his employment under this Agreement by
resignation upon not
less than 30 days
prior written
notice given within a
reasonable period of time (not to exceed, except in case of a
continuing breach,
90 days) after the event giving rise to the right to elect, which
termination by
Executive shall be an Event of Termination; provided, however, that the Bank
shall have at least 30 days to remedy the situation. No payments or benefits
shall be due to Executive under this Agreement upon the termination of
Executive's employment except as provided in Section 4 or 5.
(b)
Upon the occurrence
of an Event of
Termination,
the Bank shall pay
Executive, or,
in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay
or liquidated
damages, or both,
a lump sum in cash
equal to two times the sum of (i) the
highest annual
rate of Base Salary
paid to Executive at any time under this
Agreement, plus (ii) the highest bonus paid to Executive with
respect to the two
completed fiscal years
prior to the Event of
Termination. Such
payments shall
not be reduced in the event Executive obtains other employment following the
Event of Termination. Notwithstanding the foregoing, in the event
Executive is a
"Specified Employee"
(as defined in
Internal Revenue
Code ("Code") Section
409A), then,
to the extent
necessary to comply with Code Section 409A, no
payment shall be made
to Executive prior to
the first day of the seventh month
following the Event of Termination.
(c)
Upon the occurrence of an Event of Termination, the Bank shall provide
at the Bank's expense,
life insurance coverage and non-taxable medical and
dental coverage substantially comparable to the coverage
maintained by the Bank
for Executive
prior to the Event of
Termination,
except to the
extent such
coverage may be changed in its application to all Bank employees.
Such coverage
shall cease
twenty-four (24)
months following the
Event of Termination.
The
period for group health care continuation coverage rights under COBRA shall
not
begin until the expiration of such twenty-four (24) month
period.
5. CHANGE IN
CONTROL.
(a)
Any payment made to Executive pursuant to this Section 5 is in
lieu of
any payments that may otherwise be owed to Executive pursuant to
Section 4, such
that Executive shall either receive payments pursuant to Section 4 or
pursuant
to Section 5, but not pursuant to both Sections.
(b)
Except for payments that are subject to Code Section 409A, for
purposes
of this Agreement, the term "Change in Control" shall mean, any of
the following
but shall not include a conversion of the Bank from mutual to stock
form:
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(i)
a change in control of a nature that would be required to be reported
in response to Item
5.01(a) 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, as amended (the "Exchange Act"); or
(ii)
a change in control of the Bank within the meaning of the Home
Owners'
Loan Act, as amended ("HOLA"), and applicable rules and regulations
promulgated
thereunder, as in effect at the time of the Change in Control;
or
(iii) any of the following events, upon which a Change in Control
shall be
deemed to have occurred:
(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 Bank or
the Bank's holding company representing 25% or more of the combined
voting power
of such outstanding
securities,
except for any
securities
purchased by any
employee stock ownership plan or trust established by the Bank;
or
(B) individuals
who constitute the Board on the
Effective Date (the
"Incumbent Board")
cease for any
reason to constitute at least a majority
thereof, provided
that any person becoming a director subsequent to the
Effective Date 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
stockholders of the Bank or the Bank's holding company was
approved
by the same Nominating Committee serving under an Incumbent Board,
shall be, for
purposes of this subsection (B), considered as though they were
members of the
Incumbent Board; or
(C) a sale of all or
substantially all the
assets of the Bank or the
Bank's holding company, or a plan of reorganization, merger, consolidation,
or
similar transaction
occurs in which the
security holders of the Bank or the
Bank's holding company
immediately prior to the consummation of the transaction
do not own at least
50.1% of the
securities
of the surviving entity to be
outstanding upon consummation of the transaction; or
(D) a proxy statement is issued soliciting proxies from stockholders
of the Bank or the Bank's holding company by someone other than the current
management of the Bank or the holding company of the Bank,
seeking stockholder
approval of a plan of reorganization, merger or consolidation of
the Bank or the
Bank's holding company, or similar transaction with one or
more corporations as
a result of which the outstanding shares of the class of securities
then subject
to the plan are to be
exchanged for or
converted into cash or property or
securities not issued by the Bank or the Bank's holding company;
or
(E) a tender
offer is made for 25% or more of the voting securities of
the Bank or the Bank's holding company, and stockholders owning
beneficially or
of record 25% or more of the outstanding securities of the Bank or the Bank's
holding 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.
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(c)
With respect to any payments hereunder that are subject to Code
Section
409A, "Change in
Control" shall mean
(i) a change in the ownership of the Bank
or the Bank's holding
company, (ii) a change in the effective
control of the
Bank or the Bank's
holding company,
or (iii) a change in
the ownership
of a
substantial portion of
the assets of the Bank or the Bank's holding company, as
described below:
(i) A change in ownership occurs on the date that any one
person, or
more than one person
acting as a group (as
defined in Treasury Regulations
section
1.409A-3(i)(5)(v)(B)),
acquires ownership of
stock of the Bank or the
Bank's holding company
that, together with
stock held by such person or group,
constitutes more than
50% of the total fair market value or total voting power
of the stock of the Bank or the Bank's holding company.
(ii) A change in the
effective control of the Bank or the Bank's
holding company occurs on the date that either (i) any one person,
or more than
one person
acting as a group
(as defined in Treasury Regulations section
1.409A-3(i)(5)(vi)(B))
acquires (or has
acquired during the
12-month period
ending on the date of the most recent acquisition by such person or persons)
ownership of stock of the Bank or the Bank's holding company possessing 30% or
more of the total vo
