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Brooklyn Federal Savings Bank | Brooklyn Federal Bancorp, Inc | Angelo J. Di Lorenzo. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit
10.1
EMPLOYMENT AGREEMENT
This
Agreement is made effective as of the 1st day of January 2008,
by and between Brooklyn Federal Savings Bank (the
“Bank”), a federally chartered stock savings bank,
with its principal administrative office at 81 Court Street,
Brooklyn, New York 11201, Brooklyn Federal Bancorp, Inc. (the
“Company”), a federal mid-tier stock holding
company, with its principal administrative office at 81 Court
Street, Brooklyn, New York 11201, and Angelo J. Di Lorenzo
(“Executive”).
WHEREAS , Executive has been employed as the President and
Chief Executive Officer of the Bank pursuant to an employment
agreement by and between the Executive, the Bank and the Company
dated as of April 1, 2005 (the “2005 Agreement”);
and
WHEREAS , Executive relinquished his title as President of
the Bank and President of the Company, but retained the title of
Chief Executive Officer of the Bank and Chief Executive Officer of
the Company, effective as of January 1, 2008; and
WHEREAS , Section 409A of the Internal Revenue Code of 1986,
as amended (the “Code”) provides that certain severance
payments and other benefits to Executive hereunder must comply with
its terms and the Treasury regulations promulgated thereunder (the
“Treasury Regulations”), or subject the Executive to
additional taxes and penalties; and
WHEREAS , the Bank, the Company and Executive desire to
amend and restate the 2005 Agreement in its entirety in the form of
this Agreement in order to comply with Code Section 409A and for
certain other purposes; and
WHEREAS , the Bank and the Company desire to assure the
continued services of Executive pursuant to the terms of this
Agreement.
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:
During
the period of his employment hereunder, Executive agrees to
serve as Chief Executive Officer of the Bank and Chief
Executive Officer of the Company. During said
period, Executive also agrees to serve, if elected, as an
officer and director of any subsidiary or affiliate of the
Bank or the Company.
(a)
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. Commencing on January 1, 2009 and
continuing on January 1 st
of each year 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, that this Agreement shall
terminate at the end of thirty-six (36) months following such
Anniversary Date. Prior to each notice period for
non-renewal, the disinterested members of the Board of Directors of
the Bank (“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.
(b)
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 including activities and services related to
the organization, operation and management of the
Bank.
(a)
The compensation specified under this Agreement shall
constitute the salary and benefits paid for the duties described in
Section
2(b) . The Bank shall pay
Executive as compensation a salary of not less than $360,000 per
year (“Base Salary”). Such Base Salary shall
be payable bi-weekly. During the period of this
Agreement, Executive’s Base Salary shall be reviewed at least
annually. The first such salary review will be made no
later than December 15 of each year during the term of this
Agreement and any increase in Base Salary shall be effective from
the Anniversary Date immediately following such review 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 at no cost
to Executive with all such other benefits as are provided uniformly
to permanent full-time employees of the Bank.
(b)
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, 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)
In
addition to the Base Salary provided for by Paragraph (a) of this Section
3 , the Bank shall pay or reimburse Executive for all
reasonable travel and other reasonable expenses incurred by
Executive in performing his obligations under this Agreement and
may provide such additional compensation in such form and such
amounts as the Board may from time to time determine.
2
Executive
may serve as a member of the board of directors of business,
community and charitable organizations subject to the 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. 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.
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 Chief Executive Officer of the Bank, and such
automobile may be used by Executive in carrying out his duties
under this Agreement and for his personal use such as
commuting between his residence and his principal place of
employment. 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. Reimbursement of such expenses shall be
made upon presentation to the Bank of an itemized account of
the expenses in such form as the Bank may reasonably
require.
(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:
3
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 upon sixty (60) days prior written
notice given within a reasonable period of time not to exceed
ninety (90) days after the initial event giving rise to said
right to elect. The Bank shall have thirty (30)
days to cure the conditions giving rise to the Event of
Termination, provided that the Bank may elect to waive such 30
day 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.
4
(b)
Upon
the occurrence of an Event of Termination, on the Date of
Termination, as defined in Section 9(b), 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 sum equal to three
(3) times the sum of (i) Base Salary and (ii) the highest rate
of bonus awarded to Executive during the prior three
years.
(c)
Upon
the occurrence of an Event of Termination, the Bank will cause to
be continued life, and non-taxable medical, dental and disability
coverage substantially identical to the coverage maintained by the
Bank for Executive prior to his termination. Such coverage
shall continue for thirty-six (36) months from the Date of
Termination.
(d)
Upon
the occurrence of an Event of Termination, on the Date of
Termination, as defined in Section 9(b) after taking into
consideration the requirements of Section 6(e) hereof, the Bank
shall pay Executive a lump sum payment in an amount equal to the
present value of the Bank’s contributions that would have
been made on his behalf under each of the Bank’s
(i) 401(k) Plan, (ii) money purchase pension plan, and (iii)
employee stock ownership plan (and any other defined contribution
plan maintained by the Bank) as if Executive had continued working
for the Bank for a thirty-six (36) month period following his
termination earning the Base Salary that would have been achieved
during the remaining unexpired term of this Agreement (assuming, if
a Change in Control has occurred, that the annual Base Salary
increases under Section
3(a)
would apply and, a
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