Exhibit 10.2
E MPLOYMENT A GREEMENT
This E MPLOYMENT A GREEMENT (the “Agreement”) is made and
entered into as of
, 2005 by and between L AKE S HORE S AVINGS B ANK , a
federally-chartered savings bank having an office at 128 East
4 th Street, Dunkirk, New York 14048 (the
“Bank”) and D AVID C. M ANCUSO , an individual residing at [
] (the “Executive”).
I NTRODUCTORY S TATEMENT
The Bank has reorganized from a New
York-chartered mutual savings and loan association to a
federally-chartered stock savings bank and has become a
wholly-owned subsidiary of L AKE S HORE B ANCORP , I NC ., a
federally-chartered corporation and a mid-tier stock holding
company having an office at 128 East 4 th Street, Dunkirk, New York 14048
(the “Company”), which is majority owned by
L AKE S HORE , MHC , a mutual holding company (the
“Reorganization”). In connection with the
Reorganization, certain shares of the Company’s common stock
were sold in an initial public stock offering. The Executive has
served the Bank in an executive capacity for many years and is
familiar with the Bank’s operations.
The Board of Directors of the Bank
has concluded that it is in the best interests of the Bank and
their prospective shareholders to secure a continuity in management
following the Reorganization. They also consider it desirable to
establish a working environment for the Executive which minimizes
the personal distractions that might result from possible business
combinations in which the Bank might be involved. For these
reasons, the Board of Directors of the Bank has decided to offer to
enter into a contract with the Executive for his future services.
The Executive has accepted this offer.
The terms and conditions which the
Bank and the Executive have agreed to are as follows.
A GREEMENT
The Bank hereby continues to employ
the Executive, and the Executive hereby accepts such continued
employment, during the period and upon the terms and conditions set
forth in this Agreement.
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Section 2.
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Employment Period; Remaining Unexpired
Employment Period .
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(a) The Bank shall employ the
Executive during an initial period of three (3) years
beginning on the effective date of the Reorganization (the
“Employment Commencement Date”) and ending on the day
before the third (3 rd ) anniversary of the Employment
Commencement Date, and during the period of any additional
extensions described in section 2(b) (the “Employment
Period”).
(b) The Board of Directors of the
Bank shall conduct an annual review of the Executive’s
performance on or about each anniversary of the Employment
Commencement Date (each, an “Anniversary Date”) and
may, on the basis of such review and by written notice to the
Executive, offer to extend the Employment Period through the day
before the third (3 rd ) anniversary of the relevant
Anniversary Date. In such event, the Employment Period shall be
deemed extended in the absence of objection from the Executive by
written notice to the Bank given within ten (10) business days
after his receipt of the Bank’s offer of
extension.
(c) Except as otherwise expressly
provided in this Agreement, any reference in this Agreement to the
term “Remaining Unexpired Employment Period” as of any
date shall mean the period beginning on such date and ending on the
day before the third (3 rd ) anniversary of the
Employment Commencement Date or, if later, on the day before the
third (3 rd ) anniversary of the last
Anniversary Date as of which the Employment Period was extended
pursuant to section 2(b).
(d) Nothing in this Agreement shall
be deemed to prohibit the Bank from terminating the
Executive’s employment before the end of the Employment
Period with or without notice for any reason. This Agreement shall
determine the relative rights and obligations of the Bank and the
Executive in the event of any such termination. In addition,
nothing in this Agreement shall require the termination of the
Executive’s employment at the expiration of the Employment
Period. Any continuation of the Executive’s employment beyond
the expiration of the Employment Period shall be on an
“at-will” basis unless the Bank and the Executive agree
otherwise.
The Executive shall serve as Chief
Executive Officer and President of the Bank, having such power,
authority and responsibility and performing such duties as are
prescribed by or under the Bank’s By-Laws and as are
customarily associated with such positions. The Executive shall
devote his full business time and attention (other than during
weekends, holidays, approved vacation periods, and periods of
illness or approved leaves of absence) to the business and affairs
of the Bank and shall use his best efforts to advance their
respective best interests.
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Section 4.
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Cash
Compensation .
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In consideration for the services to
be rendered by the Executive hereunder, the Bank shall pay to him a
salary at an initial annual rate of TWO HUNDRED THIRTEEN THOUSAND
FIVE HUNDRED FIFTY DOLLARS ($213,550), payable in approximately
equal installments in accordance with their respective customary
payroll practices for senior officers. The Bank’s Board of
Directors shall review the Executive’s annual rate of salary
at such times during the Employment Period as it deems appropriate,
but not less frequently than once every twelve (12) months,
and may, in its discretion, approve a salary increase. In addition
to salary, the Executive may receive other cash compensation from
the Bank for services hereunder at such times, in such amounts and
on such terms and conditions as the Board of Directors of the Bank
may determine.
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Section 5.
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Employee Benefit Plans and
Programs .
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During the Employment Period, the
Executive shall be treated as an employee of the Bank and shall be
entitled to participate in and receive benefits under any and all
qualified or non-qualified retirement, pension, savings,
profit-sharing or stock bonus plans, any and all group life, health
(including hospitalization, medical and major medical), dental,
accident and long-term disability insurance plans, and any other
employee benefit and compensation plans (including, but not limited
to, any incentive compensation plans or programs, stock option and
appreciation rights plans and restricted stock plans) as may from
time to time be maintained by, or cover employees of, the Bank, in
accordance with the terms and conditions of such employee benefit
plans and programs and compensation plans and programs and
consistent with the Bank’s customary practices.
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Section 6.
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Indemnification and Insurance
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(a) To the maximum extent permitted
under applicable law, during the Employment Period and for a period
of six years thereafter, the Bank shall cause the Executive to be
covered by and named as an insured under any policy or contract of
insurance obtained by them to insure their directors and officers
against personal liability for acts or omissions in connection with
service as an officer or director of the Company or the Bank or
service in other capacities at their request. The coverage provided
to the Executive pursuant to this section 6 shall be of the same
scope and on the same terms and conditions as the coverage (if any)
provided to other officers or directors of the Bank.
(b) To the maximum extent permitted
under applicable law, during the Employment Period and for a period
of six years thereafter, the Bank shall indemnify the Executive
against and hold him harmless from any costs, liabilities, losses
and exposures to the fullest extent and on the most favorable terms
and conditions that similar indemnification is offered to any
director or officer of the Bank or any subsidiary or affiliate
thereof.
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Section 7.
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Outside Activities
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The Executive may serve as a member
of the boards of directors of such business, community and
charitable organizations as he may disclose to and as may be
approved by the Board of Directors of the Bank (which approval
shall not be unreasonably withheld); provided, however, that
such service shall not materially interfere with the performance of
his duties under this Agreement nor shall it violate any applicable
laws or regulations. The Executive may also engage in personal
business and investment activities which do not materially
interfere with the performance of his duties hereunder;
provided, however , that such activities are not prohibited
under any code of conduct or investment or securities trading
policy established by the Bank and generally applicable to all
similarly situated executives and that such activities are not
prohibited by any applicable laws or regulations.
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Section 8.
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Working Facilities and
Expenses .
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The Executive’s principal
place of employment shall be at the Bank’s executive offices
at the address first above written, or at such other location as
the Bank and the Executive may mutually agree upon. The Bank shall
provide the Executive at his principal place of
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employment with a private office, secretarial
services and other support services and facilities suitable to his
positions with the Bank and necessary or appropriate in connection
with the performance of his assigned duties under this Agreement.
The Bank shall reimburse the Executive for his ordinary and
necessary business expenses, including, without limitation, fees
for memberships in such clubs and organizations that are necessary
and appropriate for business purposes as mutually agreed by the
Company and the Executive, and his travel and entertainment
expenses incurred in connection with the performance of his duties
under this Agreement, in each case only if such expenses are
presented and approved in accordance with the Bank’s business
reimbursement policy then in effect.
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Section 9.
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Termination Due to Death
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The Executive’s employment
with the Bank shall terminate, automatically and without any
further action on the part of any party to this Agreement, on the
date of the Executive’s death. In such event:
(a) The Bank shall pay to the
Executive’s estate his earned but unpaid compensation
(including, without limitation, salary and all other items which
constitute wages under applicable law) as of the date of his
termination of employment. This payment shall be made at the time
and in the manner prescribed by law applicable to the payment of
wages but in no event later than thirty (30) days after the
date of the Executive’s termination of employment.
(b) The Bank shall provide the
benefits, if any, due to the Executive’s estate, surviving
dependents or his designated beneficiaries under the employee
benefit plans and programs and compensation plans and programs
maintained for the benefit of the officers and employees of the
Bank. The time and manner of payment or other delivery of these
benefits and the recipients of such benefits shall be determined
according to the terms and conditions of the applicable plans and
programs.
The payments and benefits described in sections
9(a) and (b) shall be referred to in this Agreement as the
“Standard Termination Entitlements.”
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Section 10.
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Termination Due to Disability
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The Bank may terminate the
Executive’s employment upon a determination, by vote of a
majority of the members of the Board of Directors of the Bank,
acting in reliance on the written advice of a medical professional
acceptable to them, that the Executive is suffering from a physical
or mental impairment which, at the date of the determination, has
prevented the Executive from performing his assigned duties on a
substantially full-time basis for a period of at least one hundred
and eighty (180) days during the period of one (1) year
ending with the date of the determination or is likely to result in
death or prevent the Executive from performing his assigned duties
on a substantially full-time basis for a period of at least one
hundred and eighty (180) days during the period of one
(1) year beginning with the date of the determination. In such
event:
(a) The Bank shall pay and deliver
to the Executive (or in the event of his death before payment, to
his estate and surviving dependents and beneficiaries, as
applicable) the Standard Termination Entitlements.
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(b) In addition to the Standard
Termination Entitlements, the Bank shall continue to pay the
Executive his base salary, at the annual rate in effect for him
immediately prior to the termination of his employment, during a
period ending on the earliest of: (i) the expiration of one
hundred and eighty (180) days after the date of termination of
his employment; (ii) the date on which long-term disability
insurance benefits are first payable to him under any long-term
disability insurance plan covering employees of the Bank (the
“LTD Eligibility Date”); (iii) the date of his
death; and (iv) the expiration of the Remaining Unexpired
Employment Period (the “Initial Continuation Period”).
If the end of the Initial Continuation Period is neither the LTD
Eligibility Date nor the date of his death, the Bank shall continue
to pay the Executive his base salary, at an annual rate equal to
sixty percent (60%) of the annual rate in effect for him
immediately prior to the termination of his employment, during an
additional period ending on the earliest of the LTD Eligibility
Date, the date of his death and the expiration of the Remaining
Unexpired Employment Period.
A termination of employment due to disability
under this section 10 shall be effected by joint notice of
termination given to the Executive by the Bank and shall take
effect on the later of the effective date of termination specified
in such notice or the date on which the notice of termination is
deemed given to the Executive.
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Section 11.
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Discharge with Cause
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(a) The Bank may terminate the
Executive’s employment during the Employment Period, and such
termination shall be deemed to have occurred with
“Cause”, only if:
(i) the Board of Directors of the
Bank, by majority vote of their entire membership, determine that
the Executive should be discharged because of 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, or any material breach of this Agreement;
and
(ii) at least forty-five
(45) days prior to the votes contemplated by section 11(a)(i),
the Bank has provided the Executive with notice of its intent to
discharge the Executive for Cause, detailing with particularity the
facts and circumstances which are alleged to constitute Cause (the
“Notice of Intent to Discharge”); and
(iii) after the giving of the Notice
of Intent to Discharge and before the taking of the votes
contemplated by section 11(a)(i), the Executive (together with his
legal counsel, if he so desires) is afforded a reasonable
opportunity to make both written and oral presentations before the
Board of Directors of the Bank for the purpose of refuting the
alleged grounds for Cause for his discharge; and
(iv) after the votes contemplated by
section 11(a)(i), the Bank has furnished to the Executive a notice
of termination which shall specify the effective date of his
termination of employment (which shall in no event be earlier than
the date on which such notice is deemed given) and include a copy
of a resolution or resolutions
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adopted by the Board of Directors of
the Bank certified by its corporate secretary and signed by each
member of the Board of Directors voting in favor of adoption of the
resolution(s), authorizing the termination of the Executive’s
employment with Cause and stating with particularity the facts and
circumstances found to constitute Cause for his discharge (the
“Final Discharge Notice”).
(b) If the Executive is discharged
during the Employment Period with Cause, the Bank shall pay and
provide to him (or, in the event of his death, to his estate, his
surviving beneficiaries and his dependents) the Standard
Termination Entitlements only. Following the giving of a Notice of
Intent to Discharge, the Bank shall temporarily suspend the
Executive’s duties and authority and, in such event, shall
also suspend the payment of salary and other cash compensation, but
not the Executive’s participation in retirement, insurance
and other employee benefit plans. If the Executive is not
discharged, or is discharged without Cause, within forty-five
(45) days after the giving of a Notice of Intent to Discharge,
payments of salary and cash compensation shall resume, and all
payments withheld during the period of suspension shall be promptly
restored. If the Executive is discharged with Cause not later than
forty-five (45) days after the giving of the Notice of Intent
to Discharge, all payments withheld during the period of suspension
shall be deemed forfeited and shall not be included in the Standard
Termination Entitlements. If the Bank does not give a Final
Discharge Notice to the Executive within ninety (90) days
after giving a Notice of Intent to Discharge, the Notice of Intent
to Discharge shall be deemed withdrawn and any future action to
discharge the Executive with Cause shall require the giving of a
new Notice of Intent to Discharge.
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Section 12.
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Discharge without Cause
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The Bank may discharge the Executive
at any time during the Employment Period and, unless such discharge
constitutes a discharge with Cause:
(a) The Bank shall pay and deliver
to the Executive (or in the event of his death before payment, to
his estate and surviving dependents and beneficiaries, as
applicable) the Standard Termination Entitlements.
(b) During the Remaining Unexpired
Employment Period, the Bank shall provide for the Executive and his
dependents continued group life, health (including hospitalization,
medical and major medical), dental, accident and long-term
disability insurance benefits on substantially the same terms and
conditions (including any required premium-sharing arrangements,
co-payments and deductibles) in effect for similarly situated
employees of the Bank. The c