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BROOKLYN FEDERAL BANCORP, INC. | Brooklyn Federal Savings Bank. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit
10.3
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 Marc Leno
(“Executive”).
WHEREAS , Executive has been employed as the Senior Vice
President and Chief Lending Officer of the Bank pursuant to an
employment agreement by and between the Executive, the Bank and the
Company dated as of February 1, 2006 (the “2006
Agreement”); 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 2006 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 Senior Vice President and Chief Lending Officer of
the Bank and Senior Vice President and Chief Lending 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 twenty-four (24) 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 two (2) 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 twenty-four (24) 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 $173,382. 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 Senior Vice President and Chief Lending
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 two
(2) 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 twenty-four (24) 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), 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 twenty-four (24) 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, additionally, that such payment
would continue for the remaining unexpired term of this Agreement)
and making the maximum amo
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