EMPLOYMENT AGREEMENT
Exhibit 10.18
This Employment Agreement (the “Agreement”) is made effective as of October 1, 2010 (the
“Effective Date”), by and between Xxxxx Bank, N.A. (the “Bank”), Xxxxx Bancorp, Inc. (the
“Company”), and Xxxxxxx X. Xxxxx (the “Executive”). Any reference to the “Employer” shall mean
both the Company and the Bank.
WHEREAS, the Executive is currently employed by the Employer pursuant to an employment
agreement effective as of September 30, 2009 (the “Prior Agreement”); and
WHEREAS, the Employer desires to terminate the Prior Agreement and replace it with this
Agreement; and
WHEREAS, Executive is willing to serve the Employer on the terms and conditions hereinafter
set forth and has agreed to such changes; and
NOW, THEREFORE, in consideration of the mutual covenants herein contained, and upon the other
terms and conditions hereinafter provided, the parties hereby agree as follows:
ARTICLE 1 POSITION AND RESPONSIBILITIES.
During the term of this Agreement, Executive agrees to serve as Executive Vice President and
Senior Loan Officer until December 31, 2010 (the “Executive Position”), and will perform all duties
and will have all powers associated with such position as established by the President and Chief
Executive Officer of the Employer (the “Chief Executive Officer”). Beginning on October 1, 2010 and
ending on December 31, 2012, the Executive will transition to the role of Executive Vice President,
Commercial Lending with responsibilities to include serving as a member of the Internal and
External Loan Committee, the Loan Review Committee, involved in the structure and staffing of a
loan workout area, acting as mentor to the Chief Commercial Loan Officer and Senior Credit Officer,
as well as business development and the development of referral sources (accountants and lawyers).
ARTICLE 2 TERM AND DUTIES.
(a) Term. The Executive’s period of employment with the Employer under this Agreement
(“Employment Period”) shall begin on the Effective Date and shall end on December 31, 2012.
(b) Performance Evaluations. From time to time, the Chief Executive Officer shall
conduct informal evaluations of the Executive’s performance.
(c) Duties; Membership on Other Boards.
(1) During the full-time engagement portion of the Employment Period, except for periods of
absence occasioned by illness, reasonable vacation periods, and reasonable leaves of absence
approved by the Chief Executive Officer, Executive shall devote substantially all his business
time, attention, skill, and efforts to the faithful performance of his duties hereunder including
activities and services related to the organization, operation and management of the Employer;
provided, however, that, with the approval of the Chief Executive Officer, Executive may serve, or
continue to serve, on the boards of directors of, and hold any other offices or positions in,
business companies or business organizations, which, in the Chief Executive Officer’s judgment,
will not present any conflict of interest with the Employer, or materially affect the performance
of Executive’s duties pursuant to this Agreement it being understood that membership in and service
on boards or committees of social, religious, charitable or similar organizations does not require
Chief Executive Officer approval pursuant to this Section. For purposes of this Section, Chief
Executive Officer’s approval shall be deemed to have been granted as to service with any such
business company or organization that Executive was serving as of the date of this Agreement and
disclosed to the Chief Executive Officer.
(2) During the final twenty-four (24) months of the Employment Period, the Executive
shall devote an amount of time as agreed to between the Executive and the Chief Executive Officer
with respect to performing duties hereunder, which amount of time is expected to be significantly
less than the amount of time specified in Section 2(c)(1) above.
113
ARTICLE 3 COMPENSATION, BENEFITS AND REIMBURSEMENT.
3.1. Base Salary. The Employer shall pay Executive a salary of not less than
$192,900.00 per year (“Base Salary”). Such Base Salary shall be payable biweekly, or with such
other frequency as officers and employees are generally paid. The Employer may increase, but not
decrease, Executive’s Base Salary (with any increase in Base Salary to become “Base Salary” for
purposes of this Agreement).
3.2. Bonus and Incentive Compensation. Executive will be entitled to participate in
any cash or equity-based incentive compensation or bonus plans or programs as the Employer may make
available to senior executive officers from time to time. Nothing paid to Executive under any such
plan or arrangement will be deemed to be in lieu of other compensation to which Executive is
entitled under this Agreement.
3.3. Employee Benefits. Executive shall be entitled to participate in all employee
benefit plans, programs and arrangements as generally provided by the Bank or Company to their
senior executive officers and for which Executive shall qualify. Without limiting the foregoing,
the Executive may participate in the medical, health and other insurance (including life insurance)
plans maintained by the Employer for the benefit of employees.
3.4. Paid Time Off. Executive is entitled to no less than four weeks of paid vacation
per year, plus five personal days and customary Bank holidays. Any unused paid time off during an
annual period shall be treated in accordance with the Employer’s personnel policies as in effect
from time to time.
3.5. Expense Reimbursements. Until December 31, 2010, the Bank shall provide
Executive with a monthly automobile allowance of not less than $800. During the Employment Period,
the Employer shall pay or reimburse Executive for his reasonable country club dues through the
remaining term of the Agreement, and for all reasonable travel, entertainment and other reasonable
expenses incurred by Executive during the course of performing his obligations under this
Agreement. The Bank also shall reimburse Executive for fees and expenses associated with
membership in trade associations or professional memberships related to the business of the Bank or
the Company. All reimbursements under this Section 3(e) shall be paid as soon as practicable by
the Employer upon presentation to the Employer of an itemized account of such expenses in such form
as the Employer may reasonably require; provided, however, that no payment shall be made later than
March 15 of the year immediately following the year in which the expense was incurred.
ARTICLE 4 PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
4.1. Upon the occurrence of an Event of Termination (as herein defined), the provisions of
this section shall apply. As used in this Agreement, an “Event of Termination’’ shall mean and
include any one or more of the following:
(i) the involuntary termination by the Company or the Bank of Executive’s employment hereunder
for any reason other than a Termination for Cause, as defined in Section 7 hereof, or a termination
for Disability as set forth in Section 6 hereof; and
(ii) Executive’s resignation from the Employer’s employ upon any of the following events
(which shall be treated as termination of employment for “Good Reason”), unless consented to by
Executive:
(A) a relocation of Executive’s principal place of employment to a location that is more than
thirty-five (35) miles from the location of the Employer’s principal executive offices as of the
date of this Agreement;
(B) a material reduction in the benefits and perquisites, including Base Salary, to Executive
from those being provided in the Agreement as of the Effective Date (except for any reduction that
is part of a reduction in pay or benefits that is generally applicable to officers or employees);
(C) a liquidation or dissolution of the Bank or the Company other than liquidations or
dissolutions that are caused by reorganizations that do not affect the status of the Executive; or
(D) a material breach of this Agreement by the Employer.
Upon the occurrence of any event described in clause (ii) above, Executive shall have the right to
elect to terminate his employment under this Agreement by resignation within 90 days after the
event giving rise to said right to elect, which
114
termination by Executive shall be an Event of Termination. The Employer shall have 30 days to
remedy any event set forth in clauses (ii)(A) through (D) above; provided, however, that the
Employer shall be entitled to waive such period and make an immediate payment hereunder. If the
Employer remedies the event within such 30-day cure period, then no Good Reason shall be deemed to
exist with respect to such event. If the Employer does not remedy the event within such 30-day
cure period, then the Executive may deliver a Notice of Termination, as defined in Section 9(c)
hereof, for Good Reason at any time within 60 days following the expiration of such cure period.
(iii) The involuntary termination of Executive’s employment by the Employer without cause or
the voluntary resignation by Executive from the Employer’s employ for Good Reason within one (1)
year following a Change in Control (as defined in Section 5 below).
4.2. Within 30 days following the occurrence of an Event of Termination, the Employer shall
pay Executive, or, in the event of his subsequent death, his beneficiary or beneficiaries, or his
estate, as the case may be, as severance pay or liquidated damages, or both, a lump sum cash amount
equal to the Base Salary that would have been paid during the remaining term of this Agreement
(based on the Base Salary in effect upon the Event of Termination); provided, however, that such
payment is conditioned upon the Executive signing a general release acceptable to the Employer, in
substantially the form set forth as Appendix A to this Agreement. Such payment shall not be
reduced in the event Executive obtains other employment following termination of employment. Upon
an Event of Termination, the Executive shall have such rights as specified in any other employee
benefit plans or programs maintained by the Employer, as may be in effect from time to time.
4.3. Upon the occurrence of an Event of Termination, the Employer will continue to provide,
under the same cost-sharing arrangement as is in effect upon the Event of Termination, life
insurance and non-taxable medical and health insurance coverage substantially comparable, as
reasonably or customarily available, to the coverage maintained by the Employer for Executive prior
to his termination, except to the extent such coverage may be changed in its application to all
Employer employees. Such coverage shall continue until December 31, 2012.
4.4. Notwithstanding the foregoing, in the event the Executive is a Specified Employee (as
defined herein), solely to the extent necessary to avoid penalties under Code Section 409A, payment
to the Executive’s benefit pursuant to Sections 4(b) and 4(c), if applicable, shall be made to the
Executive on the first day of the seventh month following the Executive’s Event of Termination;
provided, however, that the six-month delay for such payment shall not apply in the event that the
separation pay is due to upon an involuntary Separation from Service or a Good Reason Separation
from Service and the amount of the separation pay does not exceed two times the lesser of (i) the
Executive’s annualized compensation based upon his annual rate of pay for the taxable year
preceding the year in which the Separation from Service occurs; or (ii) the limit set forth in
Section 401(a)(17) of the Internal Revenue Code for the year in which the Separation from Service
occurs (i.e. for 2009, $245,000), as provided in Treasury Regulation Section 1.409A-1(b)(9)(iii)
(which separation pay, if in excess of the limit, shall be made as provided herein up to the amount
of the limit). “Specified Employee” shall be interpreted to comply with Code Section 409A and
shall mean a key employee within the meaning of Code Section 416(i) (without regard to paragraph 5
thereof), but an individual shall be a “Specified Employee” only if the Company or the Bank or any
affiliate is a publicly traded company.
4.5. For purposes of this Agreement, Event of Termination shall be construed to require a
“Separation from Service” as defined in Code Section 409A and the Treasury Regulations promulgated
thereunder, such that the Employer and Executive reasonably anticipate that the level of bona fide
services Executive would perform after termination would permanently decrease to a level that is
less than 50% of the average level of bona fide services performed (whether as an employee or an
independent contractor) over the immediately preceding 36-month period.
ARTICLE 5 CHANGE IN CONTROL.
5.1. For these purposes, a Change in Control of the Company or the Bank shall mean a change in
control of a nature that:
(i) would be required to be reported in response to Item 5.01 of the current report on Form
8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 (the “Exchange Act”); or
(ii) results in a Change in Control of the Bank or the Company within the meaning of the Bank
Holding Company Act, as amended, and applicable rules and regulations promulgated thereunder by the
Federal Reserve Board (collectively, the “BHCA”), or under the Bank in Control Act and the rules
and regulations promulgated thereunder by the Federal Reserve Board, as in effect at the time of
the Change in Control; or
115
(iii) without limitation such a Change in Control shall be deemed to have occurred at such
time as (a) any “person” (as the term is used in Sections 13(d) and 14(d) of the Exchange Act) is
or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 25% or more of the combined voting power of
Company’s outstanding securities, except for any securities purchased by the Bank’s employee stock
ownership plan or trust; or (b) individuals who constitute the Board on the date hereof (the
“Incumbent Board”) cease for any reason to constitute at least a majority thereof, provided that
any person becoming a director subsequent to the date hereof whose election was approved by a vote
of at least three-quarters of the directors comprising the Incumbent Board, or whose nomination for
election by the Company’s stockholders was approved by the same Nominating Committee serving under
an Incumbent Board, shall be, for purposes of this clause (b), considered as though he were a
member of the Incumbent Board; or (c) a plan of reorganization, merger, consolidation, sale of all
or substantially all the assets of the Bank or the Company or similar transaction in which the Bank
or Company is not the surviving institution occurs or is implemented; or (d) a proxy statement
soliciting proxies from stockholders of the Company is distributed, by someone other than the
current management of the Company, seeking stockholder approval of a plan of reorganization, merger
or consolidation of the Company or similar transaction with one or more corporations as a result of
which the outstanding shares of the class of securities then subject to the plan are exchanged for
or converted into cash or property or securities not issued by the Company; or (e) a tender offer
is made for 25% or more of the voting securities of the Company and the shareholders owning
beneficially or of record 25% or more of the outstanding securities of the Company have tendered or
offered to sell their shares pursuant to such tender offer and such tendered shares have been
accepted by the tender offeror.
5.2. Notwithstanding the preceding paragraphs of this Section, in the event that the aggregate
payments or benefits to be made or afforded to Executive in the event of a Change in Control would
be deemed to include an “excess parachute payment” under Section 280G of the Code or any successor
thereto, then the cash severance payable under Section 4 shall be reduced by the minimum amount
necessary to result in no portion of the payments and benefits payable by the Employer under
Section 4 being non-deductible pursuant to Code Section 280G and subject to an excise tax imposed
under Code Section 4999.
ARTICLE 6 TERMINATION FOR DISABILITY OR DEATH.
6.1. Termination of Executive’s employment based on “Disability” shall be construed to comply
with Code section 409A and shall be deemed to have occurred if (i) the Executive is unable to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death, or last for a continuous period of not
less than 12 months; (ii) by reason of any medically determinable physical or mental impairment
which can be expected to result in death, or last for a continuous period of not less than 12
months, the Executive is receiving income replacement benefits for a period of not less than three
months under an accident and health plan covering employees of the Employer; or (iii) the Executive
is determined to be totally disabled by the Social Security Administration. The provisions of
paragraph 6(b) and (c) shall apply upon the termination of the Executive’s employment for
Disability.
6.2. Executive shall participate in the short and long term disability plans and benefits
offered by the Bank to senior executives, including, but not limited to, (i) long term disability
income replacement benefits equal to no less than 60% of Executive’s base salary and bonus, based
on Executive being unable to perform the required functions of Executive’s own occupation and (ii)
supplemental retirement benefits under a long-term disability program, such that, in the event the
Executive receives long term disability benefits, an additional amount will be credited for the
benefit of the Executive and will be paid at the time and in the form specified in the plan
documents. If Executive pays the premiums for such long-term disability coverage on an after-tax
basis, the Bank shall increase Executive’s base salary by the grossed up amount necessary in order
to accommodate Executive’s payment of such premiums, such that Executive’s net base salary is not
decreased as a result of Executive’s payment of such premiums on an after-tax basis.
6.3. The Employer will cause to be continued, under the same cost-sharing arrangement as is in
effect for active employees, life insurance and non-taxable medical and health insurance coverage
substantially comparable, as reasonable or customarily available, to the coverage maintained by the
Employer for Executive prior to his termination for Disability, except to the extent such coverage
may be changed in its application to all Employer employees or not available on an individual basis
to an employee terminated for Disability. This coverage shall cease upon the earlier of (i)
Executive’s full-time employment by another employer; (ii) Executive attaining the age of 65; (iii)
Executive’s death; or (iv) thirty-six months after the Effective Date. Upon a termination of
Executive’s employment due to Disability, the Executive shall have such rights as specified in any
other employee benefit plans or programs maintained by the Employer, as may be in effect from time
to time.
(d) In the event of Executive’s death during the term of the Agreement, his estate, legal
representatives or named beneficiaries (as directed by executive in writing) shall be paid a lump
sum amount equal to two (2) times Executive’s Base Salary in effect at the time of Executive’s
death, which will be paid within 30 days of the Executive’s
116
death. Any payment due Executive by
reason of any life insurance benefit provided to him under a plan maintained by
the Employer shall offset this obligation, but such payments are in addition to any other
benefits that the Executive’s beneficiaries may be entitled to receive under any employee benefit
plan maintained by the Employer for the benefit of the Executive, including, but not limited to,
the Employer’s tax-qualified retirement plans, supplemental executive retirement plans (including
any life insurance agreements related to the supplemental executive retirement plans).
ARTICLE 7 TERMINATION FOR CAUSE.
(a) The Employer may terminate the Executive’s employment at any time, but any termination
other than Termination for Cause, as defined herein, shall not prejudice the Executive’s right to
compensation or other benefits under the Agreement. The Executive shall have no right to receive
compensation or other benefits for any period after Termination for “Cause.” Termination for
“Cause” shall include termination because of the Executive’s personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal profit, material breach of the Code
of Ethics of either the Bank or the Company, material violation of the Xxxxxxxx-Xxxxx requirements
for officers of public companies that in the reasonable opinion of the Chief Executive Officer will
likely cause substantial financial harm or substantial injury to the reputation of the Company or
the Bank, willfully engaging in actions that in the reasonable opinion of the Chief Executive
Officer will likely cause substantial financial harm or substantial injury to the business
reputation of the Company or the Bank, failure to perform stated duties after receiving written
notice of Executive’s failure to perform assigned duties, willful violation of any law, rule or
regulation (other than routine traffic violations or similar offenses) or final cease-and-desist
order, or material breach of any provision of the Agreement.
(b) For purposes of this Section, 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 Employer. Any act, or failure to act, based upon the direction of the Chief
Executive Officer or based upon the advice of counsel for the Employer 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 Employer.
ARTICLE 8 NOTICE.
8.1. Any purported termination by the Employer for Cause shall be communicated by Notice of
Termination to Executive. If, within 30 days after any Notice of Termination for Cause is given,
Executive notifies the Employer that a dispute exists concerning the termination, the parties shall
promptly proceed to arbitration. Notwithstanding the pendency of any such dispute, the Employer
shall discontinue paying Executive’s compensation until the dispute is finally resolved in
accordance with this Agreement. If it is determined that Executive is entitled to compensation and
benefits under Section 4 of this Agreement, the payment of such compensation and benefits by the
Employer shall commence immediately following the date of resolution by arbitration, with the cash
amount that would have been paid pending arbitration and interest thereon (at the prime rate as
published in The Wall Street Journal from time to time) paid to Executive as a cash lump sum within
30 days after the date the arbitration results are delivered to the Employer.
8.2. Any other purported termination by the Employer or by Executive shall be communicated by
a Notice of Termination to the other party. If, within 30 days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party that a dispute
exists concerning the termination, the parties shall promptly proceed to arbitration as provided in
Section 18 of this Agreement. Notwithstanding the pendency of any such dispute, the Employer shall
continue to pay Executive his Base Salary, and other compensation and benefits (including, without
limitation, health insurance coverage) in effect when the notice giving rise to the dispute was
given (except as to termination of Executive for Cause); provided, however, that such payments and
benefits shall not continue beyond the date that is 36 months from the date the Notice of
Termination is given. In the event the voluntary termination by Executive of his employment for
Good Reason is disputed by the Employer, and if it is determined in arbitration that Executive is
not entitled to termination benefits pursuant to this Agreement, he shall return all cash payments
made to him pending resolution by arbitration, with interest thereon at the prime rate as published
in The Wall Street Journal from time to time if it is determined in arbitration that Executive’s
voluntary termination of employment for Good Reason was not taken in good faith and not in the
reasonable belief that grounds existed for his voluntary termination for Good Reason. If it is
determined that the Executive is entitled to receive severance benefits under this Agreement, then
any continuation of Base Salary and other compensation and benefits made to the Executive under
this Section shall offset the amount of any severance benefits that are due to the Executive under
this Agreement.
8.3. For purposes of this Agreement, a “Notice of Termination” shall mean a written notice
which shall indicate the specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a basis for termination
of Executive’s employment under the provision so indicated and “Date of Termination” shall mean the
date of the Notice of Termination.
117
ARTICLE 9 POST-TERMINATION OBLIGATIONS AND CONFIDENTIALITY.
(a) The Executive hereby covenants and agrees that, for a period of two years following his
termination of employment with the Company or the Bank, he shall not, without the written consent
of the Employer, either directly or indirectly engage in any of the actions described below;
provided, however, that the Executive is not required to honor the terms of this Section 9 in the
event that the Executive terminates employment with the Company or the Bank and is not receiving
any severance payments pursuant to this Agreement:
(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 the Bank or any of their affiliates to terminate his or her employment
and accept employment or become affiliated with, or provide services for compensation in any
capacity whatsoever to, any business whatsoever that competes with the business of the Company or
the Bank or any of their affiliates or has headquarters or offices within thirty-five (35) miles of
the locations in which the Company or the Bank or their affiliates has business operations or has
filed an application for regulatory approval to establish an office;
(ii) become an officer, employee, consultant, director, independent contractor, agent, sole
proprietor, joint venturer, greater than 5% equity-owner or stockholder, partner or trustee of any
savings bank, savings and loan association, savings and loan holding company, credit union, bank or
bank holding company, insurance company or agency, any mortgage or loan broker or any other entity
competing with the Company or the Bank or their affiliates in the same geographic locations where
the Company or the Bank or their affiliates has material business interests; provided, however,
that this restriction shall not apply if the Executive’s employment is terminated following a
Change in Control or due to Termination for Cause; or
(iii) solicit, provide any information, advice or recommendation or take any other action
intended (or that a reasonable person acting in like circumstances would expect) to have the effect
of causing any customer of the Company or the Bank or their affiliates to terminate an existing
business or commercial relationship with the Company or the Bank or their affiliates.
(b) Executive shall, upon reasonable notice, furnish such information and assistance to the
Employer and/or its affiliates, as may reasonably be required by the Employer and/or its
affiliates, in connection with any litigation in which it or any of its subsidiaries or affiliates
is, or may become, a party; provided, however, that Executive shall not be required to provide
information or assistance with respect to any litigation between the Executive and the Employer, or
any of its affiliates. Executive shall be reimbursed by the Employer for out-of-pocket expenses
associated with such assistance, provided that Executive submits appropriate receipts to the
Employer for such expenses. Such reimbursements shall be paid in a cash lump sum no later than
March 15 of the year after the year in which the expenses were incurred.
(c) Executive agrees that he shall not, directly or indirectly, use, make available, sell,
disclose or otherwise communicate to any person, other than in the course of the Executive’s
assigned duties and for the benefit of the Company or the Bank, either during the period of the
Executive’s employment or at any other time thereafter, any nonpublic, proprietary or confidential
information, knowledge or data relating or belonging to the Company or the Bank, any of their
respective subsidiaries, affiliated companies or businesses, which shall have been obtained by the
Executive during the Executive’s employment with the Company or the Bank. The foregoing shall not
apply to information that (i) was known to the public prior to its disclosure to the Executive;
(ii) becomes known to the public subsequent to disclosure to the Executive through no wrongful act
of the Executive of any representative of the Executive; or (iii) the Executive is required to
disclose by applicable law, regulation or legal process (provided that the Executive provides the
Company and the Bank, as the case may be, with prior notice of the contemplated disclosure and
reasonably cooperates with the Company or Bank, as the case may be, at its expense in seeking a
protective order or other appropriate protection of such information). Notwithstanding clauses (i)
and (ii) of the preceding sentence, the Executive’s obligation to maintain such disclosed
information in confidence shall not terminate where only portions of the information are in the
public domain.
(d) All payments and benefits to the Executive under this Agreement shall be subject to the
Executive’s compliance with this Section. The parties hereto, recognizing that irreparable injury
will result to the Employer, its business and property in the event of the Executive’s breach of
this Section, agree that, in the event of any such breach by the Executive, the Employer will be
entitled, in addition to any other remedies and damages available, to an injunction to restrain the
violation hereof by the Executive and all persons acting for or with the Executive. The Executive
represents and admits that the Executive’s experience and capabilities are such that the Executive
can obtain employment in a business engaged in other lines and/or of a different nature than the
Employer, and that the enforcement of a remedy by way of injunction will not prevent the Executive
from earning a livelihood. Nothing herein will be
118
construed as prohibiting the Employer from pursuing any other remedies for such breach or
threatened breach, including the recovery of damages from the Executive.
ARTICLE 10 SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or check from the general
funds of the Bank. The Company, however, guarantees payment and provision of all amounts and
benefits due hereunder to Executive, and if such amounts and benefits due from the Bank are not
timely paid or provided by the Bank, such amounts and benefits shall be paid or provided by the
Company.
ARTICLE 11 EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties hereto and supersedes any
prior employment agreement between the Employer or any predecessor of the Employer and Executive,
except that this Agreement shall not affect or operate to reduce any benefit or compensation
inuring to Executive of a kind elsewhere provided. No provision of this Agreement shall be
interpreted to mean that Executive is subject to receiving fewer benefits than those available to
him without reference to this Agreement.
ARTICLE 12 NO ATTACHMENT; BINDING ON SUCCESSORS.
12.1. Except as required by law, no right to receive payments under this Agreement shall be
subject to anticipation, commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation, or to execution, attachment, levy, or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall be null, void, and
of no effect.
12.2. This Agreement shall be binding upon, and inure to the benefit of, Executive and the
Employer and their respective successors and assigns.
ARTICLE 13 MODIFICATION AND WAIVER.
13.1. This Agreement may not be modified or amended except by an instrument in writing signed
by the parties hereto.
13.2. No term or condition of this Agreement shall be deemed to have been waived, nor shall
there be any estoppel against the enforcement of any provision of this Agreement, except by written
instrument of the party charged with such waiver or estoppel. No such written waiver shall be
deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate
only as to the specific term or condition waived and shall not constitute a waiver of such term or
condition for the future as to any act other than that specifically waived.
ARTICLE 14 REQUIRED PROVISIONS.
14.1. Notwithstanding anything herein contained to the contrary, any payments to Executive by
the Employer, whether pursuant to this Agreement or otherwise, are subject to and conditioned upon
their compliance with Section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section
1828(k), and the regulations promulgated thereunder in 12 C.F.R. Part 359.
14.2. The Employer may terminate the Executive’s employment at any time and for any reason,
but any termination by the Company, other than Termination for Cause, shall not prejudice
Executive’s right to compensation or other benefits under this Agreement.
ARTICLE 15 SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any provision, is held
invalid, such invalidity shall not affect any other provision of this Agreement or any part of such
provision not held so invalid, and each such other provision and part thereof shall to the full
extent consistent with law continue in full force and effect.
ARTICLE 16 HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for convenience of
reference and shall not control the meaning or interpretation of any of the provisions of this
Agreement.
119
ARTICLE 17 GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New York but only to the extent
not superseded by federal law.
ARTICLE 18 ARBITRATION.
(a) Any disagreement, dispute, controversy or claim arising out of or relating to this
Agreement or the interpretation or validity hereof shall be settled exclusively and finally by
arbitration. It is specifically understood and agreed that any disagreement, dispute or
controversy which cannot be resolved between the parties, including without limitation any matter
relating to the interpretation of this Agreement, may be submitted to arbitration irrespective of
the magnitude thereof, the amount in controversy or whether such disagreement, dispute or
controversy would otherwise be considered justifiable or ripe for resolution by a court or arbitral
tribunal. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules
of the American Arbitration Association (the “AAA”).
(b) The arbitral tribunal shall consist of one arbitrator who shall be an attorney of
recognized standing at the bar with at least 15 years experience in the practice of law. The
parties to the arbitration jointly shall directly appoint such arbitrator within 30 days of
initiation of the arbitration. If the parties shall fail to appoint such arbitrator as provided
above, such arbitrator shall be appointed by the AAA as provided in the Commercial Arbitration
Rules and shall be a person who (i) maintains his or her principal place of business either within
75 miles of Buffalo, New York and (ii) had substantial experience in commercial and business
matters. The Company or the Bank shall pay all of the fees and expenses of the arbitrator. The
Bank shall pay all of the fees and expenses of the arbitrator, in a lump sum no later than two and
one-half months after the end of the calendar year in which such expenses were incurred. The
arbitration shall be conducted within the Buffalo, New York metropolitan area or in such other city
in the Untied States of America as the parties to the dispute may designate by mutual written
consent.
(c) At any oral hearing of evidence in connection with the arbitration, each party thereto or
its legal counsel shall have the right to examine its witnesses and to cross-examine the witnesses
of any opposing party. No evidence of any witness shall be presented unless the opposing party or
parties shall have the opportunity to cross-examine such witness, except as the parties to the
dispute otherwise agree in writing or except under extraordinary circumstances where the interests
of justice require a different procedure.
(d) A decision or award of the arbitral tribunal shall be final and binding upon the parties
to the arbitration proceeding. The parties hereto hereby waive to the extent permitted by law any
rights to appeal or to seek review of such award by any court or tribunal. The parties hereto
agree that the arbitral award may be enforced, against the parties to the arbitration proceeding or
their assets wherever they may be found and that a judgment upon the arbitral award may be entered
in any court having jurisdiction thereof.
(e) Nothing herein contained shall be deemed to give, the arbitral tribunal any authority,
power, or right to alter, change, amend, modify, add to, or subtract from any of the provisions of
this Agreement.
ARTICLE 19 INDEMNIFICATION.
19.1. The Executive shall be provided with coverage under a standard directors’ and officers’
liability insurance policy. The Employer shall indemnify Executive to the fullest extent permitted
against all expenses and liabilities reasonably incurred by him in connection with or arising out
of any action, suit or proceeding in which he may be involved by reason of his having been an
officer of the Employer (whether or not he continues to be an officer at the time of the of
incurring such expenses or liabilities) such expenses and liabilities to include, but not be
limited to, judgments, court costs and attorneys’ fees and the cost of reasonable settlements (such
settlements must be approved by the Chief Executive Officer), provided that the Employer shall not
be required to indemnify or reimburse Executive for legal expenses or liabilities incurred in
connection with an action, suit or proceeding arising from any illegal or fraudulent act committed
by Executive. Any such indemnification shall be made consistent with Section 18(k) of the Federal
Deposit Insurance Act, 12 U.S.C. §1828(k), and the regulations issued thereunder in 12 C.F.R. Part
359.
ARTICLE 20 Notice.
For the purposes of this Agreement, notices and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given when delivered or mailed
by certified or registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below:
120
| To the Company: | Xxxxx Bancorp, Inc. Xxx Xxxxxxx Xxxxx Xxxxxxx XX 00000 |
|||
| To the Bank: | Xxxxx Bank, N.A. Xxx Xxxxxxx Xxxxx Xxxxxxx XX 00000 |
|||
| To Executive: | Xxxxxxx X. Xxxxx 00 Xxxxxxxxx Xxx Xxxxxxx Xxxx, XX 00000 |
SIGNATURES
IN WITNESS WHEREOF, the Company and the Bank have each caused this Agreement to be executed by
its duly authorized representative, and Executive has signed this Agreement, effective as of the
date first above written.
XXXXX BANCORP, INC. |
||||
| Date October 1, 2010 | By: | /s/ Xxxxx X. Xxxxx | ||
| Xxxxx X. Xxxxx, President and | ||||
| Chief Executive Officer | ||||
| XXXXX BANK, N.A. |
||||
| Date October 1, 2010 | By: | /s/ Xxxxx X. Xxxxx | ||
| Xxxxx X. Xxxxx, President and | ||||
| Chief Executive Officer | ||||
| EXECUTIVE |
||||
| Date October 1, 2010 | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
121
APPENDIX A
ACKNOWLEDGMENT AND RELEASE
This Acknowledgment and Release (the “Acknowledgment and Release”) is entered into as of
_________________, by and between ________________________ (“Executive”), Xxxxx Bank, NA (the
“Bank”) and Xxxxx Bancorp, Inc. (the “Company”).
WHEREAS, the Executive, the Bank and the Company have entered into an employment agreement
dated _____________ (the “Employment Agreement”)(capitalized terms not defined herein shall have
the meaning ascribed to them in the Employment Agreement); and
WHEREAS, the Executive, the Bank and the Company have agreed to terminate the Employment
Agreement in exchange for payment of the severance benefits described in the Employment Agreement,
which payment is contingent upon the execution of this Acknowledgment and Release;
NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, it is agreed as follows:
1. Consideration. In full satisfaction of the benefits payable under the Employment
Agreement (other than the Bank’s obligation to continue life insurance and non-taxable medical and
health insurance coverage until the date that is thirty-six months from the Effective Date), no
later than __________________, the Bank shall pay the Executive a lump sum payment in the amount of
$________________ (the “Payment”).
2. Release and Waiver.
(a) Executive hereby agrees that the Payment will be in full satisfaction of all obligations
of the Bank and the Company to Executive under the Employment Agreement, other than the Bank’s
obligation to continue life insurance and non-taxable medical and health insurance coverage until
the date that is thirty-six months following the Effective Date.
(b) Executive, on behalf of himself, his heirs and assigns, irrevocably and unconditionally
releases the Bank and the Company from all claims, controversies, liabilities, demands, causes of
action, debts, obligations, promises, acts, agreements, and damages of whatever kind or nature,
whether known or unknown, suspected or unsuspected, foreseen or unforeseen, liquidated or
contingent, actual or potential, jointly and individually, that he has had or now has, based on any
and all aspects of the Agreements, including, but not limited to, any and all claims for breach of
express or implied contract or covenant of good faith and fair dealing (whether written or oral),
all claims for retaliation or violation of public policy, breach of promise, detrimental reliance
or tort (e.g., intentional infliction of emotional distress, defamation, wrongful termination,
interference with contractual or advantageous relationship, etc.), whether based on common law or
otherwise; all claims arising under Title VII of the Civil Rights Act of 1964, as amended; the Age
Discrimination in Employment Act; the Americans with Disabilities Act; the Equal Pay Act, the Fair
Labor Standards Act (“FLSA”), the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the
Employee Retirement Income Security Act (“ERISA”), the Family and Medical Leave Act, the National
Labor Relations Act, the Rehabilitation Act, the Older Worker Benefits Protection Act, the New York
Human Rights Law, the New York Labor Law, the Constitution of the State of New York, claims for
emotional distress, mental anguish, personal injury, loss of consortium; any and all claims that
may be asserted on Executive’s behalf by others (including the Equal Employment Opportunity
Commission), or any other federal, state or local laws or regulations relating to employment or
benefits associated with employment. The foregoing list is meant to be illustrative rather than
inclusive. Notwithstanding the above, it is understood that Executive does not waive any rights he
may have to vested benefits under any tax-qualified retirement, restricted stock or stock option
awards, or any other benefit plan, contract or arrangement.
(c) Executive waives the rights and claims to the extent set forth above, and he also agrees
not to institute, or have instituted, a lawsuit against the Bank and/or the Company based on any
such waived claims or rights.
(d) Executive acknowledges that he/she has been instructed to, and has had the opportunity to
review this Acknowledgment and Release with an attorney or any representative of his/her choosing
before signing it. Executive further acknowledges that he/she has twenty-one (21) days from the
date Executive receives this Acknowledgement and Release to consider this Acknowledgment and
Release. Executive further acknowledges that he/she was given information about other employees
laid off and retained within his/her department (if any), including
122
their ages, and has had an
opportunity to consider and review this information along with this Acknowledgment and Release.
(e) Executive shall have seven (7) days after signing this Acknowledgment and Release to
revoke it. This Acknowledgment and Release shall not be effective nor will any consideration be
provided until after the revocation period has passed. A revocation of this Acknowledgment and
Release shall be written and shall not be effective unless actually received by the Bank and the
Company on or before the 7th day after this Acknowledgment and Release has been signed.
(f) EXECUTIVE ACKNOWLEDGES AND AGREES THAT THIS RELEASE IS A FULL AND FINAL BAR TO ANY AND ALL
CLAIM(S) OF ANY TYPE THAT HE MAY NOW HAVE AGAINST THE BANK AND/OR THE COMPANY, TO THE EXTENT
PROVIDED ABOVE BUT THAT IT DOES NOT RELEASE ANY CLAIMS THAT MAY ARISE AFTER THE DATE OF THIS
AGREEMENT OR NOT OTHERWISE ADDRESSED HEREIN.
3. General Provisions.
(a) Heirs, Successors and Assigns. The terms of this Acknowledgment and Release shall
be binding upon the parties hereto and their respective heirs, successors and assigns, including
but not limited to the Bank and the Company.
(b) Final Agreement. This Acknowledgment and Release represents the entire
understanding of the parties with respect to the subject matter hereof and supersedes all prior
understandings, written or oral. The terms of this Acknowledgment and Release may be changed,
modified or discharged only by an instrument in writing signed by the parties hereto.
(c) Governing Law. This Acknowledgment and Release shall be construed, enforced and
interpreted in accordance with and governed by the laws of the State of New York, without reference
to its principles of conflicts of law.
(d) Counterparts. This Acknowledgment and Release may be executed in one or more
counterparts, each of which counterpart, when so executed and delivered, shall be deemed an
original and all of which counterparts, taken together, shall constitute but one and the same
agreement.
(e) Severability. Any term or provision of this Acknowledgment and Release which is
held to be invalid or unenforceable shall be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms and provisions of
this Acknowledgment and Release.
IN WITNESS WHEREOF, the parties hereto have signed this Acknowledgment and Release and the
Executive hereby declares that the terms of this Acknowledgement and Release have been completely
read, are fully understood, and are voluntarily accepted after complete consideration of all facts
and legal claims.
| EXECUTIVE | ||||
Date |
||||
| XXXXX BANK, N.A. | ||||
| By: | ||||
Date |
||||
| XXXXX BANCORP, INC. | ||||
| By: | ||||
Date |
||||
123
