EXECUTIVE EMPLOYMENT AGREEMENT
FIRST XXXXXXX COUNTY CORPORATION
THE FIRST NATIONAL BANK OF XXXXXXX COUNTY
and
XXXXX X. XXXXX
TABLE OF CONTENTS
Page
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1. Employment 2
2. Term 2
3. Compensation 2
4. Position and Responsibilities 3
5. Termination 4
6. Indemnification 12
7. Expenses and Automobile 12
8. Restrictive Covenant 12
9. Binding Effect 13
10. Notice 13
11. Waiver of Breach 13
12. Vested Benefits 13
13. Savings Clause 14
14. Governing Law 14
15. Entire Agreement; Modification 14
EXHIBIT "A" 16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT made this 13th day of November, 2003, by and
between FIRST XXXXXXX COUNTY CORPORATION, a Pennsylvania business corporation,
and THE FIRST NATIONAL BANK OF XXXXXXX COUNTY, a wholly-owned subsidiary of
First Xxxxxxx County Corporation and a national banking association with its
principal offices located at 0 Xxxxx Xxxx Xxxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx
(hereinafter individually referred to as "Corporation" and "Bank" respectively,
and collectively referred to as "FNB") and XXXXX X. XXXXX of West Chester,
Pennsylvania (hereinafter referred to as "Xxxxx").
RECITALS
Xxxxx is presently Assistant Treasurer of the Corporation and Chief
Operating Officer of the Bank.
Xxxxx'x leadership skills and services have constituted a major factor
in the successful growth and development of FNB.
FNB recognizes that Xxxxx'x contributions have been substantial and
meritorious and, as such, Xxxxx has demonstrated unique qualifications to act in
an executive capacity for FNB.
FNB desires to employ and retain the experience and financial ability
and services of Xxxxx as President from the effective date hereof and to prevent
any other business in competition with FNB from securing the benefit of his
services, background and expertise in the banking business.
The terms, conditions and undertakings of this Agreement were submitted
to and duly approved and authorized by the Boards of Directors of both the
Corporation and the Bank at separate meetings.
WITNESSETH:
NOW, THEREFORE, in consideration of the foregoing recitals, which are
hereby incorporated by reference, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Employment.
FNB hereby employs Xxxxx as President of the Corporation and of the
Bank, and Xxxxx hereby accepts such employment, under and subject to the terms
and conditions set forth herein.
2. Term.
Subject to the provisions for termination of this Agreement provided
herein, the term of this Agreement shall be for a period commencing November 13,
2003, and terminating December 31, 2006 (the "Term"). Thereafter, the Term shall
be extended automatically for a one year term, year to year, unless either of
the following two conditions is met: (a) FNB or Xxxxx give written termination
notice pursuant to Paragraph 6 hereof, or (b) FNB or Xxxxx agree to a mutually
acceptable date on which to terminate this Agreement.
3. Compensation.
During the Term, FNB shall pay Xxxxx a salary (the "Compensation") and
provide Xxxxx with life, health and disability insurance coverage, retirement
benefits, vacations, bonuses, and other benefits (the "Benefits"), the amounts
and nature of which shall be fixed by the Boards of Directors of the Corporation
and the Bank from time to time and set forth on the attached Exhibit "A";
provided, however, that in no event shall Xxxxx'x Compensation be less than one
hundred percent (100%) of the Compensation set forth on Exhibit "A" and in no
event shall Xxxxx'x Benefits be less than or materially different from the
Benefits he is to receive as of the date of this Agreement.
4. Position and Responsibilities.
(a) Position and Duties. Xxxxx shall be employed as the President of
the Corporation and of the Bank, and except as set forth in this Agreement shall
continue to serve as the President of the Corporation and of the Bank throughout
the entire Term. In no event shall Xxxxx be employed by the Corporation or the
Bank during any calendar year subsequent to 2003 at a lower position or rank or
with substantially diminished authority or responsibilities, and any such
diminution in position or authority shall be considered a breach of this
Agreement. Xxxxx shall diligently, efficiently and effectively perform such
duties as shall be reasonably assigned to him, which shall consist of the
general and active management of the business of FNB and such other duties of
supervision and management as are generally vested in the office of President of
a corporation or as are described in job descriptions reasonably established by
the Board of Directors of the Corporation or the Bank for such offices. During
the Term, Xxxxx shall devote substantially all of his time, attention, knowledge
and skills to the business and interests of FNB. The foregoing sentence shall
not be construed to prevent Xxxxx from making investments or participating in
non-competing charitable or educational organizations, provided that he does not
become engaged in any such activity to an extent which materially interferes
with his ability to discharge his duties and responsibilities to FNB. Xxxxx
shall at all times during the Term refrain from doing any act, disclosing any
information or making any statements to any person other than officers of FNB
which may result in the disclosure of confidential information or adversely
affect the good reputation of FNB in the community or which might adversely
affect the professional or business relationship between FNB and any business,
depositor, borrower or any other person with whom FNB is doing business or is
contemplating doing business.
(b) Office and Support. FNB shall provide Xxxxx with an office,
secretarial assistance and such other facilities and support services as shall
be suitable to Xxxxx'x position and responsibilities as set forth above and as
may be necessary to enable Xxxxx to perform such duties effectively and
efficiently.
(c) Location of Office. In connection with Xxxxx'x employment by the
Corporation and the Bank, Xxxxx shall maintain his office at the principal
executive offices of FNB located at 0 Xxxxx Xxxx Xxxxxx, Xxxx Xxxxxxx,
Xxxxxxxxxxxx, or at such other FNB office as the Board of Directors of the
Corporation and/or the Bank may select within the immediate vicinity of West
Chester, Pennsylvania.
5. Termination.
(a) Death. If Xxxxx dies during his employment hereunder, his
Compensation and Benefits hereunder shall terminate, and his bonus (if any)
shall be prorated as of the last day of the month which is the third month after
the month in which he dies.
(b) Disability. If Xxxxx shall become disabled (as determined by
FNB's insurance carrier or a physician of its choice) during the Term, then from
and after the date upon which it is determined that Xxxxx became disabled and
until such time as Xxxxx returns to the full time employment at FNB, he shall
not receive his Compensation and Benefits, but shall only be entitled to receive
disability benefits as are provided under the disability insurance and salary
continuation policy covering Xxxxx which is maintained in force by FNB at the
time such disability occurs. FNB shall maintain a disability insurance policy or
a salary continuation policy covering Xxxxx during the entire Term, and FNB
shall not cause or suffer any termination, lapse, suspension or modification of
any of such policies or any reductions in the amounts of coverage provided
thereunder without first giving Xxxxx at least thirty (30) days prior written
notice thereof.
(c) For Cause. The Board of Directors of the Corporation or the Bank
may terminate this Agreement at any time, "For Cause", if Xxxxx is convicted of
a crime which is a felony under the laws of the state in which he is prosecuted
for such crime and which involves theft, embezzlement, breach of fiduciary duty,
or any similar crime involving moral turpitude, or if he breaches any material
provision of this Agreement or substantially fails to provide the services which
are required of him under the terms of this Agreement. However, prior to
terminating this Agreement by reason of Xxxxx'x failure to provide services
hereunder or his breach of any provision of this Agreement, the Board of
Directors of the Corporation or the Bank shall first give Xxxxx written notice
specifically identifying the manner in which Xxxxx has breached the terms of
this Agreement and the approximate date or dates on which such violations have
occurred. Xxxxx shall have thirty (30) days from his receipt of such notice
within which to cure or correct the effects of such breach and to report in
writing to the Boards of Directors of the Corporation and the Bank all steps
which he has taken to cure such breach. If Xxxxx shall not have corrected or
cured such breach or diligently taken all steps which are necessary to do so
within the said thirty (30) day period, the Board of Directors of the
Corporation or the Bank may terminate this Agreement immediately upon giving
Xxxxx written notice of such termination on or after the 31st day following the
date on which notice of the breach was delivered to Xxxxx. If the breach
asserted by the Board of Directors of the Corporation or the Bank is, because of
its nature, incapable of being corrected or cured, then such breach shall not be
cause for termination of this Agreement unless such breach shall be deemed to
have caused FNB significant and irreparable harm in the opinion of a majority of
all of the members of the Board of Directors of the Corporation or the Bank. Any
such decision rendered by the Board of Directors of the Corporation or the Bank
which reasonably determines that such breach has caused significant or
irreparable harm to FNB shall be final, binding and conclusive for purposes of
this Agreement and shall not be subject to challenge by Xxxxx. If such breach is
not deemed to have caused FNB significant and irreparable harm, then this
Agreement may not be terminated by reason thereof, but any future breach of a
similar nature shall be cause for immediate termination by the Board of
Directors of the Corporation or the Bank upon giving Xxxxx written notice
thereof. If this Agreement is terminated by FNB for cause pursuant to this
paragraph (c), then FNB shall be under no obligation to provide Compensation or
Benefits to Xxxxx following the effective date of such termination, except for
such Compensation and Benefits which have accrued and which have not been paid
or provided as of the effective date of such termination.
(d) Removal Without Cause. The Corporation or the Bank shall have the
right at any time, upon written notice to Xxxxx, to terminate , "without cause",
the employment of Xxxxx hereunder. If such termination by the Corporation or the
Bank is not by reason of death, disability or For Cause pursuant to this Section
5, FNB shall be obligated to continue to pay the Compensation and provide the
Benefits to Xxxxx for the remainder of the Term or for one year, whichever is
longer, at the rates, times and intervals at which such Compensation and
Benefits are being paid or provided as of the date on which FNB terminates the
employment of Xxxxx.
(e) Breach by FNB. If FNB breaches any provision of this Agreement
(specifically including, but not limited to, substantial diminution in the
position and authority of Xxxxx as set forth in Section 4 hereof), Xxxxx shall
have the right to leave the employment of FNB. Thereafter, he shall be under no
obligation to perform his duties hereunder and shall have no further liability
or obligations under any provision of this Agreement. In such event, however,
FNB shall be obligated to continue to pay the Compensation and provide the
Benefits to Xxxxx for the remainder of the Term or for one year, whichever is
longer, at the rates, times and intervals at which such Compensation and
Benefits are being paid and provided on the date on which FNB commits a breach
of this Agreement.
(f) By Xxxxx. Xxxxx may terminate this Agreement at anytime during
the Term for any reason, by giving the Boards of Directors of the Corporation
and the Bank ninety (90) days prior written notice of the date of such proposed
termination. If Xxxxx terminates this Agreement pursuant to this paragraph (f),
FNB shall be under no obligation to pay any Compensation or provide any Benefits
to Xxxxx following the effective date of such termination, except that FNB shall
remain liable to pay the Compensation and Benefits which have accrued but which
remain unpaid or unfurnished as of the effective date of such termination.
(g) At End of Term. If FNB terminates Xxxxx'x employment hereunder as
of the end of the Term or any extension thereof, FNB shall be obligated, as
severance payments, to continue to pay the Compensation and provide the Benefits
to Xxxxx for a period of one year after such termination at the rates, times and
intervals at which such Compensation and Benefits are being paid or provided as
of the date on which FNB terminates the employment of Xxxxx.
(h) Termination After a Change of Control. If Xxxxx'x employment is
terminated (i) by the Corporation or the Bank and such termination is not by
reason of death, disability or For Cause as set forth in this Section 6, (ii) or
by Xxxxx pursuant to Section 6(f) of this Agreement, and such termination is
within two years after a "Change of Control", then the Corporation and the Bank
shall be obligated, jointly and severally, to continue to provide Xxxxx with the
Compensation and Benefits provided for herein for the longer of the remainder of
the Term or for two years after such termination. Such Compensation and Benefits
shall be paid and provided at the rate, times and intervals at which such
compensation and benefits were paid or provided on the date of such termination
of Xxxxx'x employment.
(i) Change of Control. For the purposes of this Agreement, "Change of
Control" shall mean any of the following events:
(i) any person (as such term is used in Rule 13d-5 under the
Exchange Act) or group (as such term is defined in Sections 3(a)(9) and 13(d)(3)
of the Exchange Act), becomes the beneficial owner of 15% or more of the Common
Stock or of securities of the Corporation or the Bank that are entitled to vote
generally in the election of directors of the Corporation or the Bank ("Voting
Securities") representing 15% or more of the combined voting power of all Voting
Securities of the Corporation or the Bank.
(ii) individuals who, as of the date of this Agreement,
constitute the Board of Directors (the "Incumbent Directors") cease for any
reason to constitute a majority of the members of the Board of Directors;
provided that any individual who becomes a director after the date of this
Agreement whose election or nomination for election by the Corporation or the
Bank's shareholders was approved by a majority of the members of the Incumbent
Board (other than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened "election
contest" relating to the election of the directors of the Corporation or the
Bank (as such terms are used in Rule 14a-11 under the Exchange Act), "tender
offer" (as such term is used in Section 14(d) of the Exchange Act) or a proposed
Merger (as defined below)) shall be deemed to be members of the Incumbent Board;
or
(iii) approval by the stockholders of the Corporation or the Bank
of either of the following:
(1) a merger, reorganization, consolidation or similar
transaction (any of the following, a "Merger") as a result of which the persons
who were the respective beneficial owners of the outstanding Common Stock and
Voting Securities of the Corporation or the Bank immediately before such Merger
are not expected to beneficially own, immediately after such Merger, directly or
indirectly, more than 60% of, respectively, the common stock and the combined
voting power of the Voting Securities of the corporation resulting from such
Merger in substantially the same proportions as immediately before such Merger,
or
(2) a plan of liquidation of the Corporation or the Bank or
a plan or agreement for the sale or other disposition of all or substantially
all of the assets of the Corporation or the Bank. Notwithstanding the foregoing,
there shall not be a Change in Control if, in advance of such event, Xxxxx
agrees in writing that such event shall not constitute a Change in Control
(j) Ceiling on Benefits. Under the "golden parachute" rules in the
Internal Revenue Code (the "Code") Xxxxx will be subject to a 20% excise tax
(over and above regular income tax) on any "excess parachute payment" that Xxxxx
receives following a Change in Control, and FNB will not be permitted to deduct
any such excess parachute payment. Very generally, compensation paid to Xxxxx
that is contingent upon a Change in Control will be considered a "parachute
payment" if the present value of such consideration equals or exceeds three
times Xxxxx'x average annual compensation from FNB for the five years prior to
the Change in Control. If payments are considered "parachute payments," then all
such payments to Xxxxx in excess of his base annual compensation will be
considered "excess parachute payments" and will be subject to the 20% excise tax
imposed under Section 4999 of the Code.
For example, if Xxxxx'x base annual compensation were $100,000, Xxxxx
could receive $299,000 following a Change in Control without payment of any
excise tax. If Xxxxx received $301,000 in connection with a Change in Control,
however, the entire $301,000 would be considered a parachute payment and
$201,000 of this amount would be considered an excess parachute payment subject
to excise tax.
In order to avoid this excise tax and the related adverse tax
consequences for FNB, by signing this Agreement, Xxxxx agrees that the
compensation and benefits payable to him under this Agreement after termination
of his employment will in no event exceed the maximum amount that can be paid to
him without causing any portion of the amounts paid or payable to him by FNB
following a Change in Control, whether under this Agreement or otherwise, to be
considered an "excess parachute payment" within the meaning of Section 280G(b)
of the Code.
If FNB believes that these rules will result in a reduction of the
payments to which Xxxxx is entitled under this Agreement, it will so notify
Xxxxx within 60 days following delivery of the notice of termination. If Xxxxx
wishes to have such determination reviewed, he may, within 30 days of the date
he is notified of a reduction of payments, ask that FNB retain, at its expense,
legal counsel, certified public accountants, and/or a firm of recognized
executive compensation consultants (an "Outside Expert") to provide an opinion
concerning whether, and to what extent, Xxxxx'x termination compensation and
benefits must be reduced so that no amount payable to Xxxxx by FNB (whether
under this Agreement or otherwise) will be considered an excess parachute
payment.
The Outside Expert will be as mutually agreed by Xxxxx and FNB,
provided that they we are not able to reach a mutual agreement, FNB will select
an Outside Expert, Xxxxx will select an Outside Expert, and the two Outside
Experts will select a third Outside Expert to provide the opinion required under
this Section. The determination of the Outside Expert will be final and binding,
subject to any contrary determination made by the Internal Revenue Service.
If FNB believes that Xxxxx'x termination compensation and benefits
will exceed the limitation contained in this Section, it will nonetheless make
payments to Xxxxx, at the times stated above, in the maximum amount that it
believes may be paid without exceeding such limitation. The balance, if any,
will then be paid after the opinion of the Outside Expert has been received.
If the amount paid to Xxxxx by FNB following a Change in Control is
ultimately determined, pursuant to the opinion of the Outside Expert or by the
Internal Revenue Service, to have exceeded the limitation contained in this
Section, the excess will be treated as a loan to Xxxxx by FNB and will be
repayable on the 90th day following demand by FNB, together with interest at the
"applicable federal rate" provided in Section 1274(d) of the Code.
If the provisions of Sections 280G and 4999 of the Code are repealed
without successor provisions, this Section will be of no further force or
effect.
6. Indemnification.
FNB agrees to indemnify Xxxxx to the maximum extent permitted under
applicable law for any liability incurred by Xxxxx in his capacity as an officer
or director of FNB. Such right or rights of indemnification which Xxxxx shall
have as set forth herein or in the By-laws of the Corporation or the Bank as of
the date Xxxxx'x employment hereunder is terminated shall survive such
termination. FNB shall obtain directors' and officers' liability insurance with
coverage relating to all acts and omissions alleged to have occurred during the
Term of this Agreement.
7. Expenses and Automobile.
Xxxxx is authorized to incur reasonable expenses for promoting the
business of FNB, including expenses for travel, entertainment and similar items
on behalf of FNB business. FNB shall reimburse Xxxxx for all such expenses upon
the presentation by Xxxxx, from time to time, of an itemized account of such
expenditures. In addition, FNB shall provide Xxxxx with an automobile for his
use during the Term of this Agreement.
8. Restrictive Covenant.
During the Term of this Agreement and for a period of one (1) year
thereafter, Xxxxx shall not, directly or indirectly, be employed by any other
bank or financial institution doing business in Xxxxxxx County, Pennsylvania;
provided, however, that if Xxxxx terminates this Agreement by reason of a breach
of this Agreement by FNB or if Xxxxx'x employment is terminated due to a change
of control, this restrictive covenant shall be null and void and Xxxxx shall be
entitled to be employed by any bank or financial institution doing business in
Xxxxxxx County, Pennsylvania or in any other location.
9. Binding Effect.
This Agreement shall inure to the benefit of and be binding upon FNB,
its successors and assigns, including, without limitation, any person,
partnership, company or corporation which may acquire all or substantially all
of the assets or business of FNB or into which FNB may be liquidated,
consolidated, merged or otherwise combines, regardless of the identity or form
of the surviving entity, and shall inure to the benefit of and be binding upon
Xxxxx, his heirs, and personal representatives.
10. Notice.
Any notice required or permitted to be given under this Agreement
shall be sufficient if in writing and if sent by registered mail, return receipt
requested, correctly addressed to Xxxxx'x residence, in the case of Xxxxx, or to
its principal office, in the case of FNB. Copies of all such notices shall
simultaneously be personally delivered or sent by United States first class
mail, postage prepaid, to Xxxxxxxx X. Xxxxxxx, Esq., Xxxx Xxxxx LLP, 0000 Xxxxxx
Xxxxxx, Xxxxxx Xxxxxx Xxxx, 00xx Xxxxx, Xxxxxxxxxxxx, XX 00000.
11. Waiver of Breach.
Waiver by either party of the breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by the other party.
12. Vested Benefits.
This Agreement shall not limit or in any way affect any benefits
which Xxxxx may be entitled to receive under FNB's pension plan or any other
benefits in which Xxxxx has a vested interest as of the date of this Agreement.
13. Savings Clause.
Should any provision contained herein be determined by decree of
court or other judicial body to be illegal or unenforceable, such provision
shall be considered null and void and the remainder of this Agreement shall
remain in full force and effect and shall be construed without reference to any
such provision. Nevertheless, it is the intention of the parties hereto that any
such invalid or unenforceable provision shall, if possible, be construed and
enforced in such a manner as to make the same valid and enforceable under
applicable law and consistent with the reasonable intention of the parties as
expressed in such provision.
14. Governing Law.
Questions pertaining to the validity, construction and administration
of this Agreement shall be determined in accordance with the laws of the
Commonwealth of Pennsylvania.
15. Entire Agreement; Modification.
This Agreement constitutes the entire understanding and agreement
between the parties hereto with regard to the subject matter hereof, and there
are no other agreements, conditions, representations or understandings, oral or
written, expressed or implied, with regard to the subject of this Agreement.
This Agreement may be amended or modified only by a written instrument executed
by the parties hereto.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first above written. WITNESS: THE FIRST NATIONAL BANK OF
XXXXXXX COUNTY
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Director
Personnel & Compensation Committee
ATTEST: FIRST XXXXXXX COUNTY CORPORATION
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
----------------------------------- -----------------------------------
Xxxxx X. Peirec
First Vice Chairman
WITNESS:
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx
----------------------------------- -----------------------------------
Xxxxx X. Xxxxx
EXHIBIT "A"
COMPENSATION AND BENEFITS
AS OF NOVEMBER 13, 2003
1. Annual Salary as of November 13, 2003: $225,000.00.
2. Health Insurance: Major Medical and Hospitalization Insurance through
National Alliance of Self-Funded Group Insurance Trust, Policy/Plan #JB
3/100250
3. Pension Plan: Self-Administered by FNB
4. Salary Continuance (Disability) Policy/Plan: Mutual Benefit Life
Insurance Company, Policy, or other carrier rated A or better by AM
Best, providing for a monthly benefit of $________________.*
5. Life Insurance: One year term renewable through Equitable Insurance
Company, Agreement, or other carrier rated A or better by AM Best, in
the amount of $500,000.
6. Executive Carve-out Life Insurance Policy
7. Bonus Plan: Self-Funded by FNB
8. Automobile Rental, Maintenance and Insurance
9. Six (6) Weeks Paid Vacation
* Current policy provides for a monthly benefit of 60% of predisability
earnings with a maximum of $15,000 per month and $50 minimum.
