PRUDENTIAL BANCORP, INC. PRUDENTIAL BANK RETIREMENT AND CONSULTING AGREEMENT
Exhibit 10.1
EXECUTION COPY
PRUDENTIAL BANK
RETIREMENT AND CONSULTING AGREEMENT
This Retirement and Consulting Agreement (the “Agreement”) is entered into as of March 1, 2017 by and between, on the one hand, Prudential Bancorp, Inc. (the “Company”) and Prudential Bank (the “Bank” and collectively with the Company, “Prudential”), and, on the other hand, Xxxxxx X. Xxxxx.
WHEREAS, Xx. Xxxxx currently serves as a member of the Boards of each of the Company and the Bank;
WHEREAS, Xx. Xxxxx has provided valuable services to the Bank as a director for more than fifteen years and to the Company as a director since its formation in 2013 (and to its predecessor from its formation in 2004);
WHEREAS, Xx. Xxxxx has provided legal services to the Bank for several decades, including serving as the Bank’s general counsel;
WHEREAS, Xx. Xxxxx desires to retire as a member of the Board of Directors of each of the Company and the Bank; and
WHEREAS, the Bank desires to have Xx. Xxxxx undertake, and Xx. Xxxxx is willing to undertake, certain consulting obligations on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Effective Date. The “Effective Date” of the Agreement is March 1, 2017.
2. Service on the Boards; Retirement; Consulting Period.
(a) Effective as of March 1, 2017 (“Retirement Date”), Xx. Xxxxx will retire from his position as a member of the Board of Directors of each of the Company and the Bank, as well as any positions he may have with the subsidiaries or affiliates of each entity.
(b) Xx. Xxxxx is hereby appointed, effective as of the Retirement Date, as a director emeritus of the Bank to serve in that capacity, which Xx. Xxxxx accepts, through February 28, 2019 (the “Service Period”). Xx. Xxxxx will be serving in his individual capacity and not on behalf of Xxxxx Xxxxx & Xxxxxxx LLP (“RRD”) of which firm he is a partner as of the date hereof.
(c) Effective as of the Retirement Date, the Bank engages Xx. Xxxxx, and Xx. Xxxxx accepts such engagement to provide Consulting Services (as hereinafter defined) to the Bank, subject to the terms and conditions of this Agreement, for the period commencing on the
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Retirement Date and ending on the eighteenth month anniversary of the Retirement Date, subject to its earlier termination in accordance with the terms hereof (the “Consulting Period”).
(i) provide assistance, as requested, with respect to any loan relationships of the Bank for which Xx. Xxxxx served as counsel to the Bank or acted upon in his capacity as a director thereof;
(ii) provide assistance with respect to the ongoing litigation, Island View Properties, Inc., trading as Island View Crossing II, LP, and Xxxxxx X. Xxxxxxxxx v. Prudential Savings Bank and any and all related litigation, including but not limited to Lava Funding, LLC v. Prudential Savings Bank, Xxxxxx Xxxxxxxxx and Island View Crossing II, L.P. and any other litigation that may arise out of such lending relationship (the “Litigation”);
(iii) participate in meetings or teleconferences with the Chairman, the President and Chief Executive Officer and other members of senior management of the Bank as may be reasonably requested from time to time; and
(iv) provide advice and assistance to the directors and senior management of the Bank with respect to such other matters related to the business of the Bank as may be reasonably requested from time to time by the directors and senior management of the Bank, including but not limited to assistance with matters that may arise in connection with the Bank’s lending activities, including the Litigation, or other litigation pending during the Consulting Period.
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6. Obligations of the Bank upon Termination of Consulting Services or Service as Director Emeritus.
(a) Xx. Xxxxx and Prudential agree that they shall not make or cause to be made, to any third party, any disparaging or critical remarks, comments or statements about or against the other and, in the case of the Company, its subsidiaries (including the Bank) and affiliates or any director, officer, employee or customer of any such entities at any time in the future, except for any statements by them made pursuant to lawful subpoena or legal process. Prudential shall advise the members of the Boards of Directors and all executive officers of the Bank and the Company (collectively, the “Persons to be Advised”) that they should not make public statements to third parties that are in any way disparaging or negative towards Xx. Xxxxx. Prudential shall advise the Persons to be Advised that a non-disparagement agreement is in effect, and will use reasonable efforts to enforce compliance with this Agreement. The parties further agree that neither Xx. Xxxxx nor Prudential will be liable for statements to Prudential’s independent auditors, state and federal banking regulators, the Securities and Exchange Commission (the “SEC”) or statements necessary to comply with applicable law or regulation. In addition, nothing contained herein shall prevent any of the parties hereto from making any truthful statement in connection with any legal proceeding or investigation by Prudential or any governmental authority.
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(b) Except as required by law or regulation (including without limitation in connection with any judicial or administrative process or proceeding), Xx. Xxxxx shall keep secret and confidential and shall not disclose to any third party (other than the Bank or any of its subsidiaries or affiliates or any persons employed or engaged by such entities) in any fashion or for any purpose whatsoever any information regarding the Bank or any of its subsidiaries or affiliates which is not available to the general public to which Xx. Xxxxx was granted access at any time prior to the Effective Date or during the Service Period and/or Consulting Period, including, without limitation, any of the following information relating to the Bank or any Bank subsidiary or affiliate: business or operations; plans, strategies, prospects or objectives; products, technology, processes or specifications; research and development operations or plans; the names and addresses of customers or prospective customers, including any customer lists; work performed or services rendered for any customer; any method and/or procedures relating to projects or other work developed for the Bank or any subsidiary or affiliate; distribution, sales, service, support and marketing practices and operations; financial condition, results of operations and prospects; operational strengths and weaknesses; and personnel and compensation policies and procedures. Notwithstanding anything to the contrary herein, Xx. Xxxxx understands that nothing contained in this Agreement limits his ability to report information to or file a charge or complaint with the Equal Employment Opportunity Commission, the SEC, the Federal Deposit Insurance Corporation, the Board of Governors of the Federal Reserve System or any other federal, state or local governmental agency or commission (“Government Agencies”). Xx. Xxxxx further understands that this Agreement does not limit his ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company and/or the Bank. This Agreement does not limit Xx. Xxxxx’x right to receive an award for information provided to any Government Agencies.
(c) Xx. Xxxxx agrees that damages at law will be an insufficient remedy to Prudential in the event that Xx. Xxxxx violates any of the provisions of subsections (a) or (b) of this Section 8, and that Prudential may apply for and, upon the requisite showing, have injunctive relief in any court of competent jurisdiction to restrain the breach or threatened or attempted breach of or otherwise to specifically enforce any of the covenants contained in subsections (a) or (b) of this Section 8. Xx. Xxxxx hereby consents to the right of Prudential to seek (i) any injunction (temporary or otherwise) and (ii) any other court order which may be issued against Xx. Xxxxx from violating, or directing Xx. Xxxxx to comply with, any of the covenants in subsections (a) or (b) of this Section 8. Xx. Xxxxx also agrees that such remedies that may be obtained shall be in addition to any and all remedies, including damages, available to Prudential against Xx. Xxxxx for such breaches or threatened or attempted breaches.
(d) In addition to the rights of the Company and the Bank set forth in subsection (c) of this Section 8, in the event that Xx. Xxxxx violates the terms and conditions of subsections (a) or (b) of this Section 8, the Company and its subsidiaries and affiliates may terminate any payments or benefits of any type and regardless of source payable by the Company or its subsidiaries or affiliates, if applicable, to Xx. Xxxxx, other than with respect to payments or benefits to Xx. Xxxxx under plans or arrangements, if any, that are covered by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).
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(e) Promptly upon the expiration of the 90 day period after the date Xx. Xxxxx is no longer considered an affiliate of Prudential for purposes of the Securities Act of 1933, as amended, Prudential will use its commercially reasonable efforts to assist Xx. Xxxxx in a request to the Company’s transfer agent and registrar to remove any restrictive legends deemed to no longer be applicable to Xx. Xxxxx. Any expenses incurred by Prudential specifically in connection with Xx. Xxxxx’x request will be reimbursed by Xx. Xxxxx within five days of invoicing thereby by Prudential.
10. Resolution of Disputes. Any dispute or controversy arising under or in connection with this Agreement shall be filed and maintained in the Philadelphia Court of Common Pleas or, if there is a basis for federal jurisdiction, in the United States District Court for the Eastern District of Pennsylvania. Each party hereto waives to the fullest extent permitted by applicable law and regulation any right it may have to a trial by jury with respect to any action or proceeding directly or indirectly arising out of, under or in connection with this Agreement or the transactions contemplated by this Agreement.
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12. Release of the Company and Related Parties.
(a) In consideration of the payments and the benefits to be provided to Xx. Xxxxx pursuant to this Agreement, the sufficiency of which is hereby acknowledged, Xx. Xxxxx, with the intention of binding himself and his heirs, executors, administrators and assigns, does hereby release, remise, acquit and forever discharge the Company, the Bank and each of their subsidiaries and affiliates (the “Company Affiliated Group”), their present and former officers, directors, executives, agents, attorneys and employees, and the successors, predecessors and assigns of each of the foregoing (collectively, the “Company Released Parties”), of and from any and all claims, actions, causes of action, complaints, charges, demands, rights, damages, debts, sums of money, accounts, financial obligations, suits, expenses, attorneys’ fees and liabilities of whatever kind or nature in law, equity or otherwise, whether accrued, absolute, contingent, unliquidated or otherwise and whether now known or unknown, suspected or unsuspected, which Xx. Xxxxx, individually or as a member of a class, now has, owns or holds, or has at any time heretofore had, owned or held, against any Company Released Party in any capacity, including, without limitation, any and all claims (i) arising out of or in any way connected with Xx. Xxxxx’x service to any member of the Company Affiliated Group (or the predecessors thereof) through and including the Effective Date in any capacity, or the termination of such service in any such capacity as of the Effective Date, (ii) for severance or vacation benefits, unpaid wages, salary or incentive payments, (iii) for breach of contract, wrongful discharge, impairment of economic opportunity, defamation, intentional infliction of emotional harm or other tort, (iv) for any violation of applicable state and local labor and employment laws (including, without limitation, the Pennsylvania Human Relations Act, the Pennsylvania Minimum Wage Act, the Pennsylvania Wage Payment and Collection Law and all other laws concerning unlawful and unfair labor and employment practices), and (v) for employment discrimination under any applicable federal, state or local statute, provision, order or regulation, and including, without limitation, any claim under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Civil Rights Act of 1988, the Fair Labor Standards Act, the Americans with Disabilities Act (“ADA”), ERISA, the Age Discrimination in Employment Act (“ADEA”), the Older Workers Benefit Protection Act, the Family and Medical Leave Act and any similar or analogous state statute, excepting only:
(A) the rights of Xx. Xxxxx as a shareholder of the Company, including his stock options and restricted stock awards as described in Section 4(c);
(B) rights to indemnification Xx. Xxxxx may have under (i) applicable corporate law, (ii) the articles of incorporation, charter or bylaws of any entities included in the Company Affiliated Group, (iii) any other agreement between Xx. Xxxxx and a Company Released Party, or (iv) as an insured under any director’s and officer’s liability insurance policy now or previously in force;
(C) claims for vested benefits under any health, disability, retirement, life insurance or other similar “employee benefit plan” (within the meaning of Section 3(3) of ERISA) of the Company Affiliated Group existing as of the Effective Date (the “Company Benefit Plans”); and
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(D) the rights of Xx. Xxxxx under this Agreement.
(b) Xx. Xxxxx acknowledges and agrees that the release of claims set forth in this Section 12 is not to be construed in any way as an admission of any liability whatsoever by any Company Released Party, with any such liability being expressly denied.
(c) The release of claims set forth in this Section 12 applies to any relief no matter how called, including, without limitation, wages, back pay, front pay, compensatory damages, liquidated damages, punitive damages, damages for pain or suffering, costs, and attorney’s fees and expenses.
(d) Xx. Xxxxx specifically acknowledges that his acceptance of the terms of the release of claims set forth in this Section 12 is, among other things, a specific waiver of his rights, claims and causes of action under Title VII, the ADEA, the ADA and any state or local law or regulation in respect of discrimination of any kind.
(e) Xx. Xxxxx covenants and agrees that neither he, nor any person or entity on his behalf, will file or cause or permit to be filed any civil action, suit, arbitration or legal proceeding seeking any type of personal relief, or share in any remedy against the Bank or any other Company Released Party, involving any matter which: (i) is the subject of this Agreement; (ii) arises from, or relates or refers in any way to, Xx. Xxxxx’x service to the Company and/or the Bank, the termination of that service, or the action or inaction of any of the Company Released Parties through and including the Effective Date; or (iii) occurred at any time in the past up to and including the date of Xx. Xxxxx’x execution of this Agreement, or involves any continuing effects of any actions or practices which may have arisen or occurred on or prior to his execution of this Agreement; provided, however, that nothing in this Agreement prevents Xx. Xxxxx from (x) filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission or a state fair employment practices agency, or (y) initiating an action to enforce the terms of this Agreement or pursue claims pursuant to subsections (A) thorough (D) of Section 12(a).
(f) Xx. Xxxxx shall have a period of 21 days to consider whether to execute this Agreement. To the extent Xx. Xxxxx has executed this Agreement within less than 21 days after its delivery to him, Xx. Xxxxx hereby acknowledges that his decision to execute this Agreement prior to the expiration of such 21-day period was entirely voluntary. If Xx. Xxxxx accepts the terms hereof and executes this Agreement, he may thereafter, for a period of seven days following (and not including) the date of execution (the “Revocation Period”), revoke this Agreement. If Xx. Xxxxx determines to revoke this Agreement prior to the expiration of the Revocation Period, he shall provide a written notice to the Bank and the Company in accordance with Section 16 prior to such expiration. If no such revocation occurs, this Agreement shall become irrevocable in its entirety, and binding and enforceable against Xx. Xxxxx, on the day next following the day on which the foregoing Revocation Period has elapsed. Any revocation of this Agreement shall be deemed for all purposes a revocation of this Agreement in its entirety.
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(g) Xx. Xxxxx acknowledges and agrees that he has not, with respect to any transaction or state of facts existing prior to the date hereof, filed any complaints, charges or lawsuits against any Company Released Party with any governmental agency, court or tribunal.
(h) Xx. Xxxxx acknowledges and agrees that he has been advised by the Company and the Bank to consult with independent legal counsel of his choosing in connection with his review of this Agreement prior to executing this Agreement, that he has done so or had the opportunity to do so, that he has read and had the terms of this Agreement explained to him, and that he has entered into this Agreement voluntarily and with full knowledge of its significance, meaning and binding effect. Xx. Xxxxx acknowledges and agrees that neither the Company nor the Bank nor their agents or representatives has made any promises, statements or representations, either oral or written, to Xx. Xxxxx or anyone else concerning the terms or effects of this Agreement other than those expressly contained herein.
(h) In addition to any other remedy available to the Company or the Bank hereunder, in the event that, as a result of a challenge brought by Xx. Xxxxx, the release of claims set forth in Section 12 becomes null and void or is otherwise determined not to be enforceable, then the obligation of the Bank and/or the Company to make any additional payments or to provide any additional benefits under this Agreement shall immediately cease to be of any force and effect, and Xx. Xxxxx shall promptly return to the Bank and/or the Company any payments or benefits the provision of which by the Bank and/or the Company was conditioned on the enforceability of this Agreement.
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If to Xx. Xxxxx:
Xxxxxx X. Xxxxx, Esq.
At the address last appearing on the
personnel records of the Bank
If to the Company and the Bank:
Prudential Bank
Administrative Offices
0000 Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Corporate Secretary
18. Entire Agreement; Severability.
(a) This Agreement incorporates the entire understanding between the parties relating to the subject matter hereof, recites the sole consideration for the promises exchanged and supersedes any prior agreements between the Company and/or the Bank and Xx. Xxxxx with respect to the subject matter hereof except as otherwise specifically provided herein. In reaching this Agreement, no party has relied upon any representation or promise except those set forth herein.
(b) Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable. In all such cases, the parties shall use their reasonable best efforts to substitute a valid, legal and enforceable provision which, insofar as practicable, implements the original purposes and intents of this Agreement.
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(c) All covenants and agreements in this Agreement shall expire on and be terminated and extinguished at the Date of Termination, except for those covenants and agreements contained herein which by their terms apply in whole or in part after the Date of Termination, including but not limited to the obligations set forth in Section 8 hereof.
(a) This Agreement may not be amended, supplemented or modified except by an instrument in writing signed by each party hereto; provided, however, that notwithstanding anything in this Agreement to the contrary, the Company and the Bank may amend in good faith any terms of this Agreement, including retroactively, in order to comply with Section 409A of the Internal Revenue Code of 1986, as amended.
(b) Failure to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition. A waiver of any provision of this Agreement must be made in writing, designated as a waiver and signed by the party against whom its enforcement is sought. Any waiver or relinquishment of any right or power hereunder at any one or more times shall not be deemed a waiver or relinquishment of such right or power at any other time or times.
21. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania applicable to agreements made and entirely to be performed within such jurisdiction.
[The next page is the signature page.]
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THIS AGREEMENT PROVIDES FOR A WAIVER OF JURY TRIAL PROVISION WHICH AFFECTS YOUR LEGAL RIGHTS AND MAY BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, Xx. Xxxxx has hereunto set his hand, and the Company and the Bank have caused this Agreement to be executed by their duly authorized representatives, all as of the day and year first written above.
/s/ Xxxxxx X. Xxxxx | ||
Name: Xxxxxx X. Xxxxx |
ATTEST: | PRUDENTIAL BANCORP, INC. | |||
By: | /s/Xxxxxx Xxxxxx | By: | /s/Xxxxx X. Xxxxxx | |
Name: | Xxxxxx Xxxxxx | Name: | Xxxxx X. Xxxxxx | |
Title: | Corporate Secretary | Title: | Chairman of the Board |
ATTEST: | PRUDENTIAL BANK | |||
By: | /s/Xxxxxx Xxxxxx | By: | /s/Xxxxx X. Xxxxxx | |
Name: | Xxxxxx Xxxxxx | Name: | Xxxxx X. Xxxxxx | |
Title: | Corporate Secretary | Title: | Chairman of the Board |
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