EXHIBIT 99
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made as of the 1st day of January, 2000, among Xxxxx
County National Bank, a national banking association located at 000 Xxx
Xxxxxxxxxx Xxxx, X.X. Xxx 0000, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, (the "Bank"),
ACNB Corporation, a Pennsylvania business corporation located at 000 Xxx
Xxxxxxxxxx Xxxx, X.X. Xxx 0000, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, (the
"Corporation") and Xxxxxx X. Xxxxxx, an adult individual residing in
Pennsylvania (the "Executive").
WHEREAS, the Corporation and the Bank desire to employ the Executive as
Executive Vice President of the Corporation and the Bank; and
WHEREAS, the Executive desires to serve the Corporation and the Bank in an
executive capacity under the terms and conditions set forth in this Agreement;
WHEREAS, the Corporation, the Bank and Executive desire to set forth
benefits to which the Executive would be entitled in the event that Executive's
employment by the Corporation and the Bank is terminated as outlined herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and intending to be legally bound hereby, the parties agree
as follows:
1. TERMS OF EMPLOYMENT. The initial term of this Agreement shall begin on
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January 1, 2000 and shall continue for a period of three (3) years thereafter,
or until terminated as provided herein (including as set forth in Paragraph 9 of
this Agreement). This Agreement shall be subject to automatic renewal for
successive one (1) year periods, subject to the terms and conditions set forth
in this Agreement, unless either party notifies the other in
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writing at least ninety (90) days prior to termination of the then current term
of the party's desire to terminate this Agreement.
2. POSITION AND DUTIES. The Executive shall serve as the Executive Vice
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President of the Corporation and the Bank and shall have such other powers and
duties as may from time to time be prescribed by the President and the Board of
Directors of the Corporation and the Bank, provided that such duties are
consistent with the Executive's position as the Executive Vice President of the
Corporation and the Bank.
3. ENGAGEMENT IN OTHER EMPLOYMENT. The Executive shall devote all his
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working time, ability and attention to the business of the Corporation and the
Bank during the term of this Agreement. The Executive shall notify the President
and the Board of Directors of the Corporation and the Bank in writing and
receive their written consent before the Executive engages in any other business
or commercial activities, duties or pursuits, including, but not limited to,
directorships of other companies. Under no circumstances may the Executive
engage in any business or commercial activities, duties or pursuits which
compete with the business or commercial activities of the Bank and/or
Corporation, nor may the Executive serve as a director or officer or in any
other capacity in a company which competes with the Bank and/or Corporation.
4. COMPENSATION.
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(a) Annual Direct Salary: As compensation for services rendered the
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Bank under this Agreement, the Executive shall be entitled to receive from
the Bank an annual direct salary of ___________________________
($__________________) Dollars per year (the "Annual Direct Salary"), minus
applicable taxes and withholdings payable in substantially equal monthly
installments (or such other more frequent intervals as may be
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determined by the Board of Directors of the Bank as payroll policy for
senior executive officers) prorated for any partial employment period. The
annual direct salary shall not be reduced without Executive's written
consent, except in cases of national financial depression or other
emergency when compensation reduction has been implemented by the
Corporation and the Bank as to all senior executive officers of the
Corporation and the Bank.
(b) Bonus. The Board of Directors of the Bank may, in its sole
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discretion, provide for payment of a yearly bonus to the Executive in such
an amount as it may deem appropriate to provide incentive to the Executive
and to reward the Executive for his performance.
(c) Disability Benefits. If Executive becomes disabled as the result
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of a non-work related illness, injury or impairment, Executive may
participate in the Bank's then existing short and long term disability
plans pursuant to the terms and conditions set forth in each plan.
Executive understands and agrees that these plans and policies may be
amended or terminated at any time at the discretion of the Bank and/or
Corporation.
(d) Business Expenses. During the term of his employment hereunder,
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the Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by him (in accordance with the policies and
procedures established by the Board of Directors of the Corporation or the
Bank for its senior executive officers) in performing services hereunder,
provided that the Executive properly accounts therefor in accordance with
Corporation or Bank policy.
(e) Vacation/Time Off. Executive's vacation/time off benefits shall
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accrue in accordance with the Bank's vacation/time off policy.
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5. OFFICES. The Executive agrees to serve without additional compensation
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as a director on the Board of Directors of the Bank and Corporation (if so
elected or appointed) and, if elected or appointed thereto, without additional
compensation in one or more offices of the Bank and Corporation, and/or in one
or more offices or as a director of any of the Bank and/or Corporation's
non-banking subsidiaries; provided, however, the Executive shall not be required
to serve in such additional offices or as a director of the Bank and/or
Corporation or any subsidiary if such service would expose him to adverse
financial consequences.
6. DIRECTORS AND OFFICERS LIABILITY INSURANCE. The Bank and/or Corporation
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shall use its best efforts to obtain insurance coverage for the Executive under
an insurance policy covering officers and directors of the Bank and Corporation
against certain lawsuits, arbitrations or other legal or regulatory proceedings;
however, nothing herein shall be construed to require the Bank and/or
Corporation to obtain such insurance, if the Board of Directors of the Bank
and/or Corporation determine that such coverage cannot be obtained at a
commercially reasonable price.
7. UNAUTHORIZED DISCLOSURE. The Executive shall not, during his employment,
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or at any later time, the Executive shall not, without the written consent of
the Board of Directors of the Bank and Corporation or a person authorized
thereby, knowingly disclose to any person, other than an employee of the Bank or
the Corporation or a person to whom disclosure is reasonably necessary or
appropriate in connection with the performance by the Executive of his duties as
an executive of the Bank and Corporation, any material confidential information
obtained by him while in the employ of the Bank and Corporation with respect to
any of the Bank and/or Corporation's services, products, improvements, formulas,
designs or styles, processes, customers, methods of distribution or any business
practices the disclosure of which could be or will be materially damaging to the
Bank and/or Corporation
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provided, however, that confidential information shall not include any
information known generally to the public (other than as a result of
unauthorized disclosure by the Executive) or any information of a type not
otherwise considered confidential by persons engaged in the same business or a
business similar to that conducted by the Bank and Corporation.
8. RESTRICTIVE COVENANT. The Executive covenants and agrees as follows: the
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Executive shall not directly or indirectly, within the marketing area of the
Bank and/or Corporation (defined as an area within a fifty (50) mile radius
surrounding the main office of the Bank), enter into or engage generally in
direct or indirect competition with the Bank and/or Corporation or any
subsidiary of the Bank and/or Corporation, either as an individual or as a
partner or joint venturer, or as a director, officer, shareholder holding
greater than 5% of the entity's stock, employee, agent, independent contractor,
lessor or creditor of or for any other person, for a period of one (1) year
after the date of termination of his employment. The existence of any claim or
cause of action of the Executive against the Bank and/or Corporation, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Bank and/or Corporation of this covenant. The Executive
agrees that any breach of the restrictions set forth in this Paragraph will
result in irreparable injury to the Bank and/or Corporation for which it shall
have no adequate remedy at law and the Bank and/or Corporation shall be entitled
to injunctive relief in order to enforce the provisions hereof. In the event
that this Paragraph shall be determined by any court of competent jurisdiction
to be unenforceable in part by reason of it being too great a period of time or
covering too great a geographic area, it shall be in full force and effect as to
that period of time or geographic area determined to be reasonable by the court.
9. TERMINATION.
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(a) Death. The Executive's employment hereunder shall terminate upon
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his death.
(b) Disability.
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(1) Suspension of Compensation. If, as a result of physical or
mental injury or impairment, Executive is unable to perform all of the
essential job functions of his position on a full time basis with or
without a reasonable accommodation and without posing a direct threat
to himself and others, for a period of one hundred eighty (180) days,
all obligations of Bank and Corporation to pay Executive an Annual
Direct Salary as set forth in Paragraph 4(a) of this Agreement are
suspended. Any paid time off, sick leave, or short term disability pay
Executive may be entitled to receive, pursuant to an established
disability plan or program of the Bank and/or Corporation shall be
considered part of the compensation Executive shall receive while
disabled, and shall not be in addition to the compensation received by
Executive under this provision of the Agreement.
(2) Disability Termination. Executive agrees that should he
remain unable to perform all the essential functions of his position
on a full time basis, with or without a reasonable accommodation and
without posing a direct threat to himself or others, after one hundred
eighty (180) days, the Bank and Corporation will suffer an undue
hardship by continuing Executive in his position. Upon this event, all
compensation and employment obligations of the Bank and Corporation
under this Agreement shall cease (with the exception of Executive's
rights under the Bank's then existing short term and/or long term
disability plans), and this Agreement shall terminate.
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(c) Cause. The Corporation and Bank may terminate the Executive's
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employment hereunder for "Cause." As used in this Agreement, the
Corporation shall have "Cause" to terminate the Executive's employment
hereunder upon: (1) the willful failure by the Executive to substantially
perform his duties hereunder after notice from the Corporation and a
failure to cure such violation within thirty (30) days of said notice; (2)
the willful engaging by the Executive in misconduct injurious to the
Corporation or Bank; (3) the willful violation by the Executive of the
provisions of Paragraph 3 or 8 hereof after notice from the Corporation
and/or Bank and a failure to cure such violation within thirty (30) days of
said notice, or if said violation cannot be cured within thirty (30) days,
within a reasonable time thereafter unless the Executive is diligently
attempting to cure the violation; (4) the dishonesty or gross negligence of
the Executive in the performance of his duties; (5) the breach of
Executive's fiduciary duty to the Bank; (6) the violation of any law, rule
or regulation governing banks or bank officers or any final cease and
desist order issued by a bank regulatory authority any of which materially
jeopardizes the business of the Corporation or Bank; (7) conduct on the
part of Executive which brings public discredit to the Corporation or Bank;
or (8) the Executive's failure to either be elected or to serve as a member
of the Board of Directors of the Corporation after having been nominated by
the Board of Directors unless such nomination is inconsistent with the
duties of the Directors or the terms of this Agreement.
(d) Termination by Executive. The Executive may terminate his
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employment hereunder, for Good Reason. The term "Good Reason" shall only
mean: (i) any assignment to the Executive, without his consent, of any
duties other than those contemplated by, or any limitation of the powers of
the Executive not contemplated by Paragraph 2 hereof, or (ii) a
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reduction of the Executive's Annual Direct Salary other than as provided in
Paragraph 4(a) hereof, or (iii) any other material breach by the
Corporation of this Agreement, provided that the Executive shall have given
the Board of Directors thirty (30) days written notice of such breach and
such breach shall not have been cured within such thirty (30) day period
after receipt of notice, or (iv) any Change of Control (as defined herein).
10. DEFINITION OF CHANGE OF CONTROL. For purposes of this Agreement, the
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term "Change of Control" shall mean: A change in control (other than one
occurring by reason of an acquisition of the Corporation by Executive) of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A and any successor rule or regulation promulgated
under the Securities Exchange Act of 1934 (the "Exchange Act") if Corporation
were subject to the Exchange Act reporting requirements; provided that, without
limiting the foregoing, such a change in control shall be deemed to have
occurred if;
(a) any "person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than the Corporation or any "person" who on the
date hereof is a director or officer of the Corporation is or becomes the
"beneficial owner" (as defined in Rule 13d_3 under the Exchange Act),
directly or indirectly, of securities of the Corporation representing
twenty-five percent (25%) or more of the combined voting power of the
Corporation's then outstanding securities, or
(b) during any period of two consecutive years during the term of
Executive's employment under this Agreement, individuals who at the
beginning of such period constitute the Board of Directors of the
Corporation cease for any reason to constitute at least a majority thereof,
unless the election of each director who was not a director at the
beginning of such
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period has been approved in advance by directors representing at least
two-thirds of the directors then in office who were directors at the
beginning of the period.
11. DEFINITION OF DATE OF CHANGE OF CONTROL. For purposes of this
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Agreement, the date of Change of Control shall mean:
(a) the first date on which a single person and/or entity, or group of
affiliated persons and/or entities, acquire the beneficial ownership of
twenty-five percent (25%) or more of the Corporation's voting securities,
or
(b) the date of the transfer of all or substantially all of the
Corporation's assets, or
(c) the date on which a merger, consolidation or combination is
consummated, as applicable, or
(d) the date on which individuals who formerly constituted a majority
of the Board of Directors of the Corporation ceased to be a majority.
12. PAYMENTS UPON TERMINATION.
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(a) If the Executive's employment shall be terminated for Cause, or
this Agreement is not renewed by the Bank and the Corporation, the Bank
and/or Corporation shall pay the Executive or his estate his full Annual
Direct Salary through the date of termination at the rate in effect at the
time of termination minus applicable taxes and withholdings and any other
amounts owing to the Executive at the date of termination, and the Bank
and/or Corporation shall have no further obligations to the Executive under
this Agreement.
(b) If the Executive's employment is terminated by the Bank and/or
Corporation (other than pursuant to Paragraphs 9(a), 9(b) or 9(c) hereof or
as a result of nonrenewal of this Agreement), or if the Executive shall
terminate his employment for Good Reason, then the
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Bank and/or Corporation shall pay the Executive his full Annual Direct
Salary from the date of termination through the last day of the term of
this Agreement, including any extended term by virtue of the provisions of
Paragraph 1 hereof. The Bank shall also maintain in full force and effect,
for the continued benefit of the Executive for the remaining term of this
Agreement, all employee benefit plans and programs to which the Executive
was entitled prior to the date of termination, if the Executive's continued
participation is permitted under the terms and provisions of such plans and
programs. In the event that the Executive's continued participation in any
such plan or program is not permitted, in lieu of continued participation,
the Executive shall receive an amount equal to the annual contribution made
by the Bank on his behalf under any such plans and programs, grossed-up by
the amount of income and social security taxes attributable thereto, the
amount of such taxes to be determined by a good faith estimate of the Bank.
(c) If the Executive's employment shall be terminated by the Bank
and/or Corporation because of Executive's disability, the Executive shall
have no further right to payment other than those payments Executive may
receive as set forth in the Bank's then existing short term and/or long
term disability plans.
(d) If the Executive's employment shall be terminated because of his
death, the Bank and/or Corporation shall pay the Executive or his estate
his full Annual Direct Salary through the date of termination at the rate
in effect at the time of termination minus applicable taxes and
withholdings and any other amounts owing to the Executive, and the Bank and
Corporation shall have no further obligations to Executive under this
Agreement.
(e) Golden Parachute Limitation. Should the payments described in this
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Paragraph be considered by state or federal bank regulators to be "golden
parachute
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payments" as defined in 12 C.F.R./359, et seq. and 12 U.S.C.S./1828(k),
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the Bank and Corporation are relieved from any and all liability for those
payments considered to be golden parachute payments.
(f) Nonrenewal of Agreement and Severance Allowance: In the event the
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Executive serves the full term of this Agreement, and the Bank and/or
Corporation do not offer to renew this Agreement, the Executive shall not
be entitled to any severance allowance whatsoever and the Bank and/or
Corporation shall have no further obligations to the Executive under this
Agreement.
13. DAMAGES FOR BREACH OF CONTRACT/WAIVER OF JURY TRIAL. In the event of a
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breach of this Agreement by either the Corporation or the Executive, each hereby
waive to the fullest extent permitted by law the right to a trial by jury and to
assert any claim against the others for punitive or exemplary damages.
Furthermore, Executive hereby waives any and all rights to assert claims or
recover damages in an amount in excess of that set forth in Paragraph 12(b).
14. NOTICE. For the purposes of this Agreement, notices and all other
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communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive: Xxxxxx X. Xxxxxx
X.X. Xxx 000
Xxxxxxxxxxxx, XX 00000
If to the Bank: Xxxxx County National Bank
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
If to the Corporation: ACNB CORPORATION
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
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or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
16. SUCCESSORS. This Agreement shall inure to the benefit of and be binding
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upon the Executive, his personal representatives, heirs or assigns and to the
Bank and/or Corporation and any of successors or assigns of the Bank and/or
Corporation.
17. SEVERABILITY. If any provision of this Agreement is declared
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unenforceable by a judicial or administrative body for any reason, the remaining
provisions of this Agreement shall be unaffected thereby and shall remain in
full force and effect.
18. AMENDMENT. This Agreement may be amended or canceled only by mutual
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agreement of the parties in writing.
19. PAYMENT OF MONEY DUE DECEASED EXECUTIVE. In the event of Executive's
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death, any moneys that may be due him from the Bank under this Agreement as of
the date of death shall be paid to the person designated by him in writing for
this purpose or, in the absence of any such designation, to his estate.
20. LAW GOVERNING. This Agreement shall be governed by and construed in
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accordance with the laws of the Commonwealth of Pennsylvania.
21. ENTIRE AGREEMENT. This Agreement supersedes any and all agreements,
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either oral or in writing, between the parties with respect to the employment of
the Executive by the Bank and/or Corporation, and this Agreement contains all
the covenants and agreements between the parties with respect to the employment
of Executive by the Bank and/or Corporation.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement to be duly executed in their respective names
and, in the case of the Corporation, by its authorized representatives the day
and year above mentioned.
ATTEST: XXXXX COUNTY NATIONAL BANK
/s/ Xxxx X. Xxxxxxxx By /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
ATTEST: ACNB CORPORATION
/s/ Xxxx X. Xxxxxxxx By /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
WITNESS:
/s/ D. Xxxxxxx Xxxxx By /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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