Exhibit 10.1
Employment Agreement
This Employment Agreement (the “Agreement”) is made and entered into as of April 26, 2023, by and between Frank Perez (the “Executive”) and Ponce Bank, a federally chartered bank (the “Bank”).
WHEREAS, the Executive currently serves as Executive VP and Chief Investor Relations Officer of the Bank and its parent corporation, Ponce Financial Group, Inc. (“PFG”) as an at-will employee;
WHEREAS, the Executive desires to continue to be employed by the Bank on the terms and conditions set forth herein, and the Bank desires to continue to employ the Executive on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants, promises and obligations set forth herein, the parties agree as follows:
provided further that, the activities described in clauses (a) and (b) do not interfere with the performance of the Executive’s duties and responsibilities to the Bank as provided hereunder.
Specifically, Executive shall be responsible for the following duties in his role as Executive VP and Chief Investor Relations Officer:
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Items 5.1(a)(i) through 5.1(a)(iv) are referred to herein collectively as the “Accrued Amounts”.
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The Bank cannot terminate the Executive’s employment for Cause unless it has provided written notice to the Executive of the existence of the circumstances providing grounds for termination for Cause and the Executive has had 30 days from the date on which such notice is provided to cure such circumstances, if such grounds are curable (e.g., conviction is not curable). If the Executive remedies the condition within such 30-day cure period, then no Cause shall be deemed to exist with respect to such condition. If the Executive does not remedy the curable condition within such 30-day cure period, then the Bank may deliver a notice of termination for Cause at any time following the expiration of such cure period.
For purposes of this Agreement, no act or failure to act on the part of the Executive shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interests of the Bank. Any act or failure to act based upon authority given pursuant to a resolution duly adopted by the Board or based upon the written advice of counsel for the
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Bank shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Bank.
In the event that the Executive is terminated for Cause based on Section 5.1(b)(i) above and, after the case is fully adjudicated (including all appeals), the Executive is subsequently found innocent of these charges on the merits of the case by any court of competent jurisdiction or the appropriate administrative agency, then the Executive will be entitled to receive at that time the amounts payable due to a termination without Cause. Such amounts will be paid no later than the end of the calendar year in which the Executive is fully adjudicated to be innocent of the charges.
The Executive cannot terminate his employment with respect to the Bank for Good Reason unless he has provided written notice to the Bank of the existence of the circumstances providing grounds for termination for Good Reason within 30 days of the initial existence of such grounds and the Bank has had 30 days from the date on which such notice is provided to cure such circumstances. If the Bank remedies the condition within such 30-day cure period, then no Good Reason shall be deemed to exist with respect to such condition. If the Bank does not remedy the condition within such 30-day cure period, then the Executive may deliver a notice of termination for Good Reason at any time within 60 days following the expiration of such cure period. If the Executive does not terminate his employment for Good Reason within 60 days following the expiration of the cure period, then the Executive will be deemed to have waived his right to terminate for Good Reason with respect to such grounds.
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Any question as to the existence of the Executive’s Disability as to which the Executive and the Bank cannot agree shall be determined in writing by a qualified independent physician mutually acceptable to the Executive and the Bank. If the Executive and the Bank cannot agree as to a qualified independent physician, each shall appoint such a physician and those two physicians shall select a third who shall make such determination in writing. The determination of Disability made in writing to the Bank and the Executive shall be final and conclusive for all purposes of this Agreement.
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Notwithstanding anything contained herein, the Termination Date shall not occur until the date on which the Executive incurs a “separation from service” within the meaning of Code section 409A.
For purposes of this Agreement, “Confidential Information” includes, but is not limited to, all information not generally available and known to the public, in spoken, printed, electronic or any other form or medium, relating directly or indirectly to the Bank or any of its subsidiaries, or of any other person or entity that has entrusted information to the Bank in confidence.
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The Executive understands and agrees that Confidential Information includes information developed by him in the course of his employment by the Bank as if the Bank furnished the same Confidential Information to the Executive in the first instance. Confidential Information shall not include information that is generally available to and known by the public at the time of disclosure to the Executive or later; provided that, such disclosure is through no direct or indirect fault of the Executive or person(s) acting on the Executive’s behalf.
Without otherwise limiting the foregoing, the parties agree that this Agreement and the terms hereof (“Contract Information”) shall constitute Confidential Information unless and until the Bank determines that it or they must or should be disclosed, in whole or in part. The Bank intends to coordinate any such required or desired disclosure of Contract Information with the Executive.
The Executive agrees and covenants: (i) to treat all Confidential Information as strictly confidential; (ii) not to directly or indirectly disclose, publish, communicate or make available Confidential Information, or allow it to be disclosed, published, communicated or made available, in whole or part, to any entity or person whatsoever except as needed in the performance of the Executive’s authorized employment duties to the Bank; and (iii) not to access or use any Confidential Information, and not to copy any documents, records, files, media or other resources containing any Confidential Information, or remove any such documents, records, files, media or other resources from the premises or control of the Bank, except as needed in the performance of the Executive’s authorized employment duties to the Bank and the Bank. Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation or order.
The Executive understands and acknowledges that his obligations under this Agreement with regard to any particular Confidential Information shall commence immediately upon the Executive first having access to such Confidential Information (whether before or after he begins employment with the Bank) and shall continue during and after his employment by the Bank until such time as such Confidential Information has become public knowledge other than as a result of the Executive’s breach of this Agreement or breach by those acting in concert with the Executive or on the Executive’s behalf. Nothing herein shall prevent the Executive from disclosing Contract Information to his personal attorneys, accountants and other advisors, as necessary for the performance of their duties and on a confidential basis.
The Executive further understands and acknowledges that the Bank’s ability to reserve these services for the exclusive knowledge and use of the Bank is of great competitive importance
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and commercial value to the Bank, and that improper use or disclosure by the Executive is likely to result in unfair or unlawful competitive activity.
For purposes of this Section 8.2:
Nothing herein shall prohibit the Executive from purchasing or owning less than 5% of the securities or ownership interests of any corporation, partnership or limited liability company, provided that such ownership represents a passive investment and that the Executive is not a controlling person of, or a member of a group that controls, such corporation, partnership or limited liability company.
This Section 8 does not, in any way, restrict or impede the Executive from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation or order. The Executive shall promptly provide written notice of any such order to the Board of Directors.
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If a court or arbitration panel concludes that the time period of the restriction set forth in this Section 8 is not enforceable or that a specific geographical scope must be stated herein, then the parties agree that such court or arbitration panel may rewrite the time period of this restriction and/or prescribe a geographical restriction to the maximum enforceable time period and geographical area permitted by law.
The Executive further acknowledges that the amount of his compensation reflects, in part, his obligations and the Bank’s rights under Section 7 and Section 8 of this Agreement; that he has no expectation of any additional compensation, royalties or other payment of any kind not otherwise referenced herein in connection herewith; and that he will not be subject to undue hardship by reason of his full compliance with the terms and conditions of Section 6 and Section 7 of this Agreement or the Bank’s enforcement thereof.
The Bank shall pay all arbitration costs and all other costs in connection with any arbitration proceeding hereunder, including but not limited to reasonable attorneys’ fees incurred by the Executive in connection with the arbitration.
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The parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Agreement or by making such other modifications as it deems warranted to carry out the intent and agreement of the parties as embodied herein to the maximum extent permitted by law.
The parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and if such provision or provisions
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are not modified as provided above, this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had not been set forth herein.
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If to the Bank or its successor:
Chair of the Board of Directors
Ponce Bank
2244 Westchester Ave.
Bronx, NY 10462
and
President
Ponce Bank
2244 Westchester Ave.
Bronx, NY 10462
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If to the Executive:
Frank Perez
c/o Ponce Bank
2244 Westchester Ave.
Bronx, NY 10462
and
Frank Perez
(last home address on file with the Bank)
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
| PONCE DE LEON FEDERAL BANK
|
| By /s/ Carlos Naudon |
| EXECUTIVE
Signature: /s/ Frank Perez
|
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