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EXHIBIT 10.13
CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement") is made and entered into as
of this 1st day of October, 1997 by and between CARVER BANCORP, INC.
("Company"), a Delaware corporation having its executive offices at 75 West
125th Street, New York, New York 10027 and M. MORAN WESTON, residing at 228
Promenade Circle, Heathrow, Florida 32746 ("Consultant").
W I T N E S S E T H :
WHEREAS, the Consultant will retire as a member of the Board of
Directors of the Company ("Company Board") and the Board of Directors ("Bank
Board") of Carver Federal Savings Bank ("Bank"), after having served on the
Company Board since 1996, on the Bank Board since 1948, as Chairman of the Bank
Board from 1980 to 1995, as Vice Chairman of the Bank Board since 1995 and as
President of the Bank from 1968 to 1969; and
WHEREAS, for purposes of facilitating a smooth transition of the
membership of the Company Board and Bank Board, the Company wishes to secure for
itself the availability of the Consultant's advise and counsel for a period
following his retirement; and
WHEREAS, the Consultant is willing to continue to provide such
advice and counsel to the Company on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, the Company and the Consultant hereby agree as
follows:
Section 1. Engagement; Period of Engagement.
The Company offers to engage the Consultant, and the Consultant
hereby accepts such engagement, to be available to the Company for consultation
for a period of five (5) years beginning on the date first above written
("Effective Date") and ending on the day before the fifth anniversary of the
Effective Date ("Period of Engagement"). Following the expiration of the Period
of Engagement, the Company and the Consultant may, but shall be under no
obligation to, enter into a subsequent agreement or other arrangement providing
for the continued availability of the Consultant to the Company.
Section 2. Extent of Services.
(a) During the Period of Engagement, the Consultant shall hold
himself available for consultation with the Company Board and the Bank Board,
upon the Company's reasonable request from time to time. The Consultant may be
called upon for such consultation not more often than 2 days per month during
the Period of Engagement.
Section 3. Compensation.
In consideration for the availability of the Consultant's services
hereunder, the Company shall pay to the Consultant a retainer at the annual rate
of TWELVE THOUSAND DOLLARS ($12,000.00), payable in advance in equal monthly
installments, the first such installment to be paid on the Effective Date and
each succeeding installment to be paid on the first
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business day of each succeeding calendar month until a total of sixty (60) such
payments have been made; provided, however, that no payment shall be made for
any month after the month in which this Agreement terminates as provided in
section 7. Such retainer shall constitute the sole and exclusive compensation to
which the Consultant is or may become entitled hereunder. Without limiting the
generality of the foregoing, the Consultant shall have no right by virtue of his
role as a consultant to participate in, or to receive benefits under, any of the
following plans, programs or arrangements which may be maintained by, or which
may be available for individuals providing services to, the Bank or the Company:
any qualified or non-qualified deferred compensation or retirement plan; any
life, health (including hospitalization, medical and major medical), accident or
disability plan, whether provided through insurance contracts or otherwise; any
stock option, appreciation right, phantom stock or restricted stock plan or any
other equity participation plan; any bonus, incentive or other cash compensation
program; and any vacation, sick leave, severance pay, holiday or other fringe
benefit program of any name or nature whatsoever. The foregoing sentence shall
not prohibit the Consultant from receiving any other compensation or benefits he
is entitled to as a former member of the Company Board or the Bank Board under
any plans, programs or arrangements maintained by the Company or the Bank.
Section 4. Expenses.
If, in connection with the performance of service hereunder at the
request of the Company, the Consultant incurs out-of-pocket costs for reasonable
expenses of a type for which the members of the Company Board would be
reimbursed by the Company, he shall be entitled to reimbursement therefor by the
Company in accordance with the standards and procedures in effect from time to
time for expense reimbursements to the members of the Company Board.
Section 5. Confidentiality; Non-solicitation.
(a) During the Period of Engagement and for a period of one (1) year
thereafter, the Consultant, except as previously authorized by the Company in
writing, shall keep confidential and shall refrain from using or disclosing for
the benefit of any person or entity other than the Corporation or the Company
any document or information obtained in the course of performing services under
this Agreement. The preceding sentence shall not apply to the use or disclosure
of any such document or information: (i) on or following the date on which such
information or document is first readily ascertainable from public or published
information or trade sources; or (ii) in connection with any judicial or
administrative investigation, inquiry or proceeding to the extent compelled
pursuant to applicable law and as to which, unless expressly prohibited by
applicable law, the Consultant has given advance notice to the Company.
(b) The Consultant acknowledges that during the course of his
performance of service for the Company he may develop or otherwise acquire
papers, files or other records involving or relating to confidential or secret
plans, design information of any kind, devices, material, research, new product
development, customers or customer lists. All such papers, files and other
records shall be the exclusive property of the Company and shall, together with
any and all copies thereof, be returned to the Company upon the earliest to
occur of the termination of this Agreement, the expiration of the Period of
Engagement, and a request by the Company for the return thereof.
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(c) The Consultant hereby covenants and agrees that, during the
Period of Engagement and for a period of one (1) year thereafter, he shall not,
without the written consent of the Company, either directly or indirectly:
(i) solicit, offer employment to, or take any other action intended,
or that a reasonable person acting in like circumstances would expect, to
have the effect of causing any officer or employee of the Company or any
affiliate to terminate his or her employment and accept employment or
become affiliated with, or provide services for compensation in any
capacity whatsoever to, any entity that directly or indirectly competes
with the Company in any market area in which it is then active; or
(ii) provide any information, advice or recommendation to any
officer or employee of any entity engaged or to be engaged directly or
indirectly in the same or competing business with the Company in any
market area in which it is then active that is intended, or that a
reasonable person acting in like circumstances would expect, to have the
effect of causing any officer or employee of the Company or any affiliate
to terminate his or her employment and accept employment or become
affiliated with, or provide services for compensation in any capacity
whatsoever to, such competing entity.
Nothing in this section 5(c) shall prevent the Consultant from directly or
indirectly advertising employment opportunities or disseminating marketing
materials through newspapers of general circulation or other mass media or
providing employment references to third parties in response to inquiries not
initiated by him.
(d) The duties and obligations imposed on the Consultant under this
section 5 are intended to be in addition to, and not in limitation or exclusion
of, any duties and obligations which the Consultant may owe to the Company under
applicable law. This section 5 shall be con strued and enforced so as to give
effect to this intent.
Section 6. Non-Competition.
The Consultant agrees that during the Period of Engagement, but in
any event during the twelve (12) month period commencing on the Effective Date,
the Consultant shall not, directly or indirectly, anywhere within the State of
New York, engage in a business (as principal, partner, director, officer, agent,
employee, consultant, owner, independent contractor or otherwise, with or
without compensation) or hold a financial interest in any organization engaged
in the business of banking (commercial or thrift) or which is otherwise engaged
in competition with the Company or its subsidiaries or affiliates. The foregoing
restriction shall not be construed to prohibit the ownership by the Consultant
of less than five percent (5%) of any class of securities of any corporation
which is engaged in any of the foregoing businesses having a class of securities
registered pursuant to the Securities Exchange Act of 1934, as amended, provided
that such ownership represents a passive investment and that neither the
Consultant or any group of persons including the Consultant in any way, either
directly or indirectly, manages or exercises control of any such corporation,
guarantees any of its financial obligations, otherwise takes part in its
business (other than exercising his rights as a shareholder) or seeks to do any
of the foregoing.
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Section 7. Termination of Agreement.
This Agreement shall terminate immediately upon the occurrence of
either (a) the Consultant's breach of his obligations under sections 2, 5 or 6
hereof or (b) the Consultant's election to terminate the Period of Engagement
upon 30 days' advance written notice to the Company. Following the termination
of this Agreement, neither the Company nor the Consultant shall have any further
obligations hereunder, except for their respective obligations, if any, under
sections 4, 5, 6 and 9.
Section 8. Death Benefits.
In the event of the Consultant's death prior to the termination of
the Period of Engagement, the Consultant's surviving spouse or, if the
Consultant is not survived by a spouse, such beneficiary or beneficiaries as the
Consultant shall have designated by written notice to the Secretary of the
Company, shall be entitled to receive the compensation provided for under
Section 3 hereof for the remainder of the Period of Engagement. In addition,
notwithstanding anything to the contrary in Article III of the Carver Federal
Savings Bank Retirement Plan for Non-Employee Directors ("Directors' Retirement
Plan"), the Consultant's surviving spouse, if any, shall also be entitled to
receive annual payments equal to the difference between 100% of the retirement
benefit to be, or remaining to be, paid to the Consultant under the Directors'
Retirement Plan at the time of his death, if any, and the annual payments his
surviving spouse actually receives from the Directors Retirement Plan, if any.
Payment of the supplemental survivor retirement benefit provided for under this
Section 8 shall be made at the same times and in the same manner as survivor
benefits to be paid to the Consultant's surviving spouse pursuant to Article III
of the Directors' Retirement Plan.
Section 9. No Employment Relationship Created.
The relationship between the Company and the Consultant shall be
that of client and independent contractor. The Company shall not assume, and
specifically disclaims, any obligations of an employer to an employee which may
exist under applicable law. The Consultant shall not have any of the rights of
an employee with respect to the Company, and specifically waives any and all
such rights. The Consultant hereby agrees to take any and all such actions as
the Company may reasonably request in order to establish that no employment
relationship exists between the parties (except for any such actions as would
result in the termination of this Agreement, and provided that the Consultant
shall be reimbursed for reasonable out-of-pocket expenses incurred by him in
connection therewith). The Consultant shall be treated as an independent
contractor for all purposes of federal, state and local income taxes and payroll
taxes.
Section 10. Right to Specific Performance.
The Consultant hereby agrees that any breach of his covenants and
agreements under sections 5 and 6 will cause irreparable injury to the Company
for which the Company has no adequate remedy at law. Therefore, the Consultant
agrees that each and every covenant and agreement set forth in sections 5 and 6
shall, in addition to and not by way of limitation of any other remedy which may
be available, be specifically enforceable against him by any party entitled to
enforcement thereof in a proceeding described in section 19 hereof.
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Section 11. Successors and Assigns.
This Agreement will inure to the benefit of and be binding upon the
Consultant, his legal representatives and testate or intestate distributees, and
the Company, and their respective successors and assigns, including, in the case
of the Company, any successor by merger or consolidation or a statutory receiver
or any other person or firm or corporation to which all or substantially all of
the respective assets and business of the Company may be sold or otherwise
transferred. Notwithstanding the foregoing, the availability of the personal
services of the Consultant is an integral part of this Agreement. The
Consultant's duty of performance hereunder shall not be subject to assignment.
Section 12. Notices.
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five (5) days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
If to the Consultant:
M. Moran Weston
228 Promenade Circle
Heathrow, Florida 32746
If to the Company:
Carver Bancorp, Inc.
75 West 125th Street
New York, New York 10027
Attention: David R. Jones
Chairman of the Board of Directors
Section 13. Severability.
A determination that any provision of this Agreement, in whole or in
part, is invalid or unenforceable shall not affect the validity or
enforceability of any other provision hereof or of any part of the provision in
question not determined to be unenforceable.
Section 14. Waiver.
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
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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.
Section 15. Counterparts.
This Agreement may be executed in two (2) or more counterparts, each
of which shall be deemed an original, and all of which shall constitute one and
the same Agreement.
Section 16. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York without giving effect to the
conflict of law principles of such laws.
Section 17. Headings and Construction.
The headings of sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any section. Any
reference to a section number shall refer to a section of this Agreement, unless
otherwise stated.
Section 18. Entire Agreement; Modifications.
This instrument contains the entire agreement of the parties
relating to the subject matter hereof, and supersedes in its entirety any and
all prior agreements, understandings or resentations relating to the subject
matter hereof. No modifications of this Agreement shall be valid unless made in
writing and signed by the parties hereto.
Section 19. Survival.
The provisions of this Agreement, other than section 2 hereof, shall
survive the termination of this Agreement or the expiration of the Period of
Engagement.
Section 20. Indemnification.
The Company shall indemnify the Consultant and his heirs, successors
and assigns from and against any and all losses, claims, damages and liabilities
to which the Consultant may become subject under applicable federal or state
law, or otherwise, related to or arising out of the Consultant's performance of
services hereunder. The Company will not be liable under the foregoing
indemnification provision to the extent that any loss, claim, damage or
liability relates to a claim that the Consultant's performance of his duties
hereunder is a breach of any duty which he owes or is purported to owe to any
other party or results from the Consultant's bad faith,
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willful misconduct or gross negligence. In the case any action is brought
against the Consultant with respect to which indemnity may be sought against the
Company under this Agreement, the Consultant shall promptly notify the Company
in writing and the Company shall have the right to assume the defense thereof,
including the employment of counsel and the payment of all fees and expenses.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and the Consultant has hereunto set his hand, all as of the day and
year first above written.
/s/ M. Moran Weston
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M. MORAN WESTON
CARVER BANCORP, INC.
By: /s/ David R. Jones
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David R. Jones
Chairman of the Board of Directors
ATTEST:
By /s/ Raymond L. Bruce
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Raymond L. Bruce
Secretary
[Seal]