Exhibit 10.1
EMPLOYMENT AGREEMENT
EFFECTIVE AS OF November 16,2002
AGREEMENT by and between Victory State Bank ("Bank") and Xxxxxx Xxxx
("Executive") effective on November 16, 2002. Executive shall receive an "Early
Sign On Bonus" bonus of $34,000.00 effective and payable immediately upon
Executive's execution of this Employment Agreement.
Whereas Bank desires to continue to employ Executive to devote his full
time and attention to the business of the Bank, and Executive desires to
continue to be so employed.
Whereas, the terms, conditions and undertakings contained in this
Agreement were submitted to, and duly approved and authorized by, the Bank's
Board of Directors at its regular meeting on May 14, 2002, subject to approval
of same by all applicable regulators, if applicable.
Now, therefore, the parties agree as follows:
1. Employment. Bank agrees to employ Executive, and Executive agrees
to be so employed, in the capacity of President, Chief Executive Officer of the
Bank and such other related officer position(s) as may be required, collectively
("Executive Employment") provided Executive satisfies and continues to satisfy
all applicable regulatory and legal requirements. Employment shall be for a term
of five years effective as set forth above and terminating five years
thereafter. Nothing set forth herein shall diminish or affect Bank's or
Executive's Termination rights as set forth in P. 4 below.
2. Time and efforts. Executive shall diligently and conscientiously
devote his full and exclusive time and attention and best efforts in discharging
the duties required by his Executive Employment.
3. Compensation. Bank shall pay to Executive as compensation for his
services the sum of $195,000.00 per annum ("Base Salary"). Executive shall be
entitled to annual salary increases of 5% over the preceding year's base salary
commencing on the second year anniversary of the effective date of this contract
or November 16, 2004. Executive's Base Salary shall be paid bi-weekly. In
addition thereto, Executive may be entitled to an annual bonus payable
approximately 60 days after the end of each calendar year based upon and after
considering the following factors:
(a) The performance of the Bank as compared to its peers; and
(b) The performance of the Bank as compared to previous years
performance; and
(c) Bonus payments made to other chief executive officers at peer
banks with similar performance; and
(d) Bonus payments made to other officers of the Bank; and
(e) Other factors deemed appropriate by the Board of Directors.
4. Termination. Executive may not terminate this Agreement prior to
the third anniversary of its effective date. Bank may terminate this Agreement
prior to the third anniversary of its effective date only for Cause as set forth
below. Notwithstanding the foregoing, however, in the event that either Bank or
Executive shall terminate this Executive's employment pursuant to this Agreement
prior to the third anniversary of its effective date (other than for Cause as
set forth below), the Executive shall be entitled to payment by Bank of six (6)
months' salary as "Accrued Severance." The Bank's duty to pay said Accrued
Severance, however, shall not constitute a waiver of the Bank's or of
Executive's right to pursue any and all legal and equitable remedies for breach
of this Agreement as a result of such early termination.
Commencing after the third anniversary of the effective date of this
Agreement i.e. after November 16, 2005, either Bank or Executive may at any
time, terminate Executive's Executive Employment on ninety (90) days' prior
written notice to the other party, as the case may be. Notwithstanding the
foregoing, the Executive's employment pursuant to this Agreement may be
terminated at any time by the Bank for Cause. In the event Executive's Executive
Employment is terminated by Bank for Cause, Bank shall not be required to give
any notice and the Bank thereafter shall have no further obligations under this
Agreement, including, without limitation, any obligation to pay salary or bonus
or severance, or to provide benefits hereunder. For purposes of this Agreement
"for Cause" shall mean: (a) a material breach of this Agreement; (b) willful
violation of Federal, State or agency law or regulation causing damage to the
Bank or having a detrimental effect on the Bank's business; (c) willful and
continued personal misconduct, action or inaction causing damage to the Bank or
having a detrimental effect on the Bank's business; (d) actions contrary to the
policies and/or business practices of the Bank; or (e) Disability as defined in
P. 10 herein except that only in the case of Disability, Executive shall be
entitled to salary as set forth in P. 10.
5. Severance.
(i) Termination by the Bank. In the event Executive's Executive
Employment is terminated by Bank during the term of this Agreement after three
years, without Cause and for reasons other than a "Change in Control", as
hereafter defined, Bank's liability shall be as follows:
o if terminated by Bank after Executive has been employed
pursuant to this Agreement for more than three (3)
years from its effective date (but less than four (4)
years), then the Bank's liability shall limited to
payment of an amount equal to eight (8) months' salary;
o if termination occurs as aforesaid, after Executive has
been employed pursuant to this Agreement for more than
four(4) years, but less than four (4) years six (6)
months, then the Bank's liability shall be limited to
payment to Executive of an amount equal to a total of
ten (10) months' salary and
o if termination occurs as aforesaid any time after the
fourth (4th) year sixth (6th) month pursuant to this
Agreement, the Bank's liability shall be limited to
payment to Executive of an amount equal to twelve (12)
months' salary.
All severance payable hereunder shall be paid in equal
monthly installments. If terminated by Bank as aforesaid, Bank shall also
continue to provide Executive with medical insurance coverage at Bank's cost and
expense during the period in which Bank is paying severance to Executive,
("Severance Period").
It is understood and agreed that the severance sum and the
medical insurance shall be as and for liquidated damages in the event of such
termination and shall cease upon death of Executive. Medical insurance coverage
shall cease prior to expiration of the severance period upon Executive's
obtaining employment with comparable medical insurance coverage.
In the event that this Agreement is terminated by Bank for
Cause, Executive shall not be entitled to any severance payment, or medical
insurance (except to the extent required by law, if any).
(ii) Termination by Executive. In the event that Executive
terminates this Agreement after three (3) years from its effective date and
severance is payable pursuant to this paragraph, Bank shall pay Executive his
Base Salary up to the date of termination as well as any bonus compensation
earned provided that Executive completes the calendar year relating to that
bonus compensation. Executive shall not be entitled to any other severance
payment, except that:
o if Executive has faithfully complied with the terms of
this Agreement for a period in excess of three years,
then Executive shall be paid eight (8) months' salary
as severance;
o if Executive has faithfully complied with the terms of
this Agreement for a period of four (4) years but less
than four (4) years six (6) months, then Executive
shall be paid ten (10) months' salary as severance; and
o if Executive has faithfully complied with the terms of
this Agreement for a period in excess of four (4) years
six (6) months, then Executive shall be paid twelve
months' severance; (with no bonus, except as set forth
in P. 5(ii)).
(iii) Termination by Change in Control. Should Executive's
Executive Employment be terminated by reason of any of the following events
defined as a "Change in Control", Bank shall be liable to Executive for payment
of a total of thirty-six (36) months' salary from the date of termination to be
paid, at Executive's option either in equal monthly installments or in a lump
sum and the Bank shall continue to provide Executive with medical insurance
coverage for thirty-six (36) months at the Bank's cost and expense. Executive
shall not be entitled to any bonus, except as set forth in P. 5(ii). "Change in
Control" shall be defined as follows:
(a) merger of Bank with another financial institution
with the result that Bank shall not be the surviving institution and Executive's
Executive Employment is terminated within one year from said merger for any
reason;
(b) sale of Bank to any other entity and Executive's
Executive Employment is terminated within one year from sale for any reason;
(iv) Nothing stated herein shall effect Executive's rights
to receive such group medical and dental coverage, if any, as shall be required
to be made available in accordance with any and all applicable laws, including
but not limited to Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA") for the same period and under the same terms and conditions as are
available to other former employees of the Bank. Furthermore, nothing stated
herein shall effect any and all rights Executive may have with regard to
outstanding options or stock appreciation of Bank, if any, pursuant to any stock
option plan or grant and/or any benefits Executive may be entitled to receive
under any Bank profit sharing plan or pension plan, or stock appreciation rights
plan to the extent that same may exist and subject to the terms of said plan.
(v) Upon receipt of any severance sum as aforesaid, and in
consideration of the receipt of same, Executive will be deemed to have released
and discharged the Bank, its directors, officers, employees, agents, and
attorneys and their heirs, executors, administrators, successors and assigns
from all actions, cause of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents, executions,
claims, and demands whatsoever, in law, admiralty or equity, which against the
Bank, Executive's heirs, executors, administrators, successors and assigns ever
had, now have or hereafter can, shall or may have for, upon, or by reason of any
matter, cause or thing whatsoever from the beginning of the world.
6. Executive Benefits. This Agreement shall not be in lieu of any
rights, benefits and privileges to which Executive may be entitled as an
employee of the Bank under any retirement, pension, profit-sharing, stock
option, stock grant, insurance, hospital or other plans, if any, which may
become effective or which may hereafter be adopted. Executive shall have the
same rights and privileges to participate in such plans and benefits as any
other employee during his period of employment.
7. Confidentiality. Executive agrees to maintain in strict confidence
and not to disclose to anyone any trade secrets, proprietary information and/or
other non-public information regarding Bank and/or any of Bank's customers of
which Executive becomes aware as a result of his employment with Bank. These
obligations shall survive termination of this Agreement.
8. Restriction.
(i) Executive agrees that he will not engage in the banking
business on Staten Island, including but not limited to becoming an employee,
officer, director, trustee, consultant or advisor of or to any financial
institution (collectively Business Activities") on Staten Island for a period of
three years after the termination of Executive Employment regardless of whether
that termination occurs as a result of mutual agreement, or otherwise. Nothing
herein shall prohibit Executive from engaging in Business Activities with a
financial institution which does not have its principal place of business on
Staten Island so long as the Business Activity is not conducted at any Staten
Island office of said financial institution. The Bank may, at its sole option,
extend the period of restrictive covenant and the non-solicitation of Bank
customers for a term totalling up to five (5) years provided Bank pays to
Executive one-half of Executive's Base Salary for each additional year of
restriction/non-solicitation desired. This option shall be referred to herein as
the Extended Restrictive Covenant/Non-Solicitation Option.
(ii) Executive also agrees that he shall not directly or
indirectly solicit any of Bank's customers existing during the term of this
Agreement, whether on behalf of himself or any other person, firm, company or
corporations, with respect to any banking related business for a period of three
years after termination of Executive Employment, regardless of whether that
termination occurs as a result of mutual agreement, or otherwise. The Bank's
exercise of the Extended Restrictive Covenant/Non-Solicitation Option shall also
simultaneously extend the non-solicitation period for no further consideration.
9. Expenses Reimbursement. The Bank shall reimburse Executive for all
reasonable and necessary expenses incurred in carrying out his duties under this
Agreement. Executive shall present to the Bank from time to time an itemized
account of such expenses in any form required by the Bank.
10. Disability. If during the term of this Agreement Executive shall
become physically or mentally incapable of performing the services required of
him, and such incapacity is, or may reasonably be expected to exist, for four
months in the aggregate during any period of six consecutive months (as
determined by the Board of Directors of the Bank in its sole and absolute
discretion, which shall be final and conclusive), the Bank may upon ten (10)
days' notice to Executive terminate this Agreement. Upon such termination, all
obligations of the Bank to Executive shall thereupon terminate and said
termination shall be deemed "for Cause", provided however that in the event the
disability resulting in the termination of this Agreement shall occur within the
first three (3) years of the effective date of the Agreement, the Executive
shall be entitled to six (6) months' salary in connection with the disability
termination of this Agreement by Bank; or
o if terminated by Bank after as aforesaid, after
executive has been employed pursuant to this Agreement
for more than three (3) years from its effective date,
but less than four (4) years, then the Bank's liability
shall limited to payment of an amount equal to eight
(8) months' salary;
o if termination occurs as aforesaid, after Executive has
been employed pursuant to this Agreement for more than
four(4) years, but less than four (4) years six (6)
months, then the Bank's liability shall be limited to
payment to Executive of an amount equal to a total of
ten (10) months' salary and
o if termination occurs as aforesaid, after Executive has
been employed pursuant to this Agreement, any time
after the fourth (4th) year sixth (6th) month, the
Bank's liability shall be limited to payment to
Executive of an amount equal to twelve (12) months'
salary.
And, in any such case, all obligations of the Bank to Executive shall thereupon
terminate as if said termination had been a termination "for Cause".
11. Severability. If any provision, paragraph, or subparagraph of this
Agreement is adjudged by any court to be void or unenforceable in whole or in
part, this adjudication shall not affect the validity of the remainder of the
Agreement, including any other provision, paragraph, or subparagraph. Each
provision, paragraph, and subparagraph of the Agreement is separable from every
other provision, paragraph, and subparagraph, and constitutes a separate and
distinct covenant.
12. Notices. All notices required or permitted to be given under this
Agreement shall be given by certified mail, return receipt requested, to the
parties at the following addresses or to such other addresses as either may
designate in writing to the other party;
If to Bank:
Victory State Bank
Attention: Chairman
0000 Xxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
with copy to:
Nerlino & Xxxxxxx, LLP
Attention: Xxxx Xxxxxxx Xxxxxxx
000 Xx. Xxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
If to Executive:
Xxxxxx Xxxx
00 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
13. Governing law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York.
14. Entire contract. This Agreement supersedes all agreements
previously made between the parties relating to its subject matter including,
but not limited to, that certain Employment Agreement effective November 1997.
This Agreement constitutes the entire understanding and agreement between the
Bank and Executive with regard to all matters herein. There are no other
agreements, conditions or representations, oral or written express or implied,
with regard thereto. This Agreement may be amended only in writing, signed by
both parties.
15. Non-waiver. A delay or failure by either party to exercise a right
under this Agreement, or a partial or single exercise of that right, shall not
constitute a waiver of that or any other right.
16. Headings. Headings in this Agreement are for convenience only and
shall not be used to interpret or construe its provisions.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
18. Successors and Assigns. This Agreement shall inure to the benefit
of, and be binding upon, the Bank, its successors and assigns, including,
without limitation, any corporations which may acquire all or substantially all
of the Bank's assets and business or into which the Bank may be consolidated or
merged. The Executive may assign his right to payment, but not his obligations,
under this Agreement.
In witness whereof the Bank has, by its appropriate officer, signed and
sealed and Executive has signed and sealed this Agreement.
Attest: VICTORY STATE BANK
By /s/ Xxxxxx X. XxXxxxx
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Xxxxxx X. XxXxxxx, Chairman
Witness:
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
