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Exhibit 10.9
AGREEMENT
AGREEMENT, dated this 9th day of December 1997, between Commonwealth
Bancorp, Inc. (the "Corporation"), a Pennsylvania corporation, and Xxxxxxx X.
Xxxx (the "Executive").
WITNESSETH
WHEREAS, the Executive is presently President, Chief Operating Officer and
Secretary of the Corporation and Commonwealth Bank (the "Bank") (together, the
"Employers");
WHEREAS, the Employers desire to be ensured of the Executive's continued
active participation in the business of the Employers, and the Bank is
concurrently entering into a new Agreement with the Executive to supersede the
agreement with the Executive dated January 1, 1997;
WHEREAS, in accordance with Office of Thrift Supervision ("OTS")
Regulatory Bulletin 27a, the Corporation and the Bank desire to enter into
separate agreements with the Executive with respect to his employment by each of
the Employers; and
WHEREAS, in order to induce the Executive to remain in the employ of the
Employers and in consideration of the Executive's agreeing to remain in the
employ of the Employers, the parties desire to specify the terms of such
employment, including the severance benefits which shall be due the Executive by
the Corporation in the event that his employment with the Corporation is
terminated under specified circumstances;
NOW THEREFORE, in consideration of the mutual agreements herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. DEFINITIONS. The following words and terms shall have the meanings set
forth below for the purposes of this Agreement:
(a) AVERAGE ANNUAL COMPENSATION. The Executive's "Average Annual
Compensation" for purposes of this Agreement shall be deemed to mean the average
level of compensation paid to the Executive by the Employers or any subsidiary
thereof during the most recent five taxable years preceding the Date of
Termination, including Base Salary (as defined in Section 1(b) hereof) and
bonuses paid to the Executive but excluding amounts relating to the vesting of
Management Recognition Plan shares.
(b) BASE SALARY. "Base Salary" shall mean the Executive's annual salary
exclusive of any pension or other retirement plan, profit sharing, stock option,
employee stock
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ownership, or other plans, benefits and privileges given to employees and
executives of the Employers.
(c) CAUSE. Termination by the Corporation of the Executive's employment
for "Cause" shall mean termination because of personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of any law, rule
or regulation (other than traffic violations or similar offenses) or final
cease-and-desist order or material breach of any provision of this Agreement.
(d) CHANGE IN CONTROL OF THE CORPORATION. "Change in Control of the
Corporation" shall mean a change in control of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), or any successor thereto, whether or not the Corporation is registered
under the Exchange Act; provided that, without limitation, such a change in
control shall be deemed to have occurred if (i) any "person" (as such 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 Corporation representing 25% or more of the
combined voting power of the Corporation's then outstanding securities; or (ii)
during any period of two consecutive years, 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, or the
nomination for election by stockholders, of each new director was approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
(e) CODE. "Code" shall mean the Internal Revenue Code of 1986, as amended.
(f) DATE OF TERMINATION. "Date of Termination" shall mean the date the
Executive's employment is terminated for any reason as specified in the Notice
of Termination.
(g) DISABILITY. Termination by the Corporation of the Executive's
employment based on "Disability" shall mean termination because of any physical
or mental impairment which qualifies the Executive for disability benefits under
the applicable long-term disability plan maintained by the Employers or any
subsidiary or, if no such plan applies, which would qualify the Executive for
disability benefits under the Federal Social Security System.
(h) GOOD REASON. Termination by the Executive of the Executive's
employment for "Good Reason" shall mean termination by the Executive within one
year following a Change in Control of the Corporation based on:
(i) Without the Executive's express written consent, the failure
to elect or to re-elect or to appoint or to re-appoint the
Executive to the offices
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of President, Chief Operating Officer and Secretary of the
Employers or a material adverse change made by the Employers
in the Executive's functions, duties or responsibilities as
President, Chief Operating Officer and Secretary of the
Employers as they existed immediately prior to a Change in
Control of the Corporation;
(ii) Without the Executive's express written consent, a reduction
by either of the Employers in the Executive's Base Salary as
the same may be increased from time to time or, except to the
extent permitted by Section 3(b) hereof, a reduction in the
package of fringe benefits provided to the Executive, taken as
a whole;
(iii) The principal executive office of either of the Employers is
relocated more than 25 miles from the current principal
executive office or, without the Executive's express written
consent, either of the Employers requires the Executive to be
based anywhere other than an area in which the Employers'
principal executive office is located, except for required
travel on business of the Employers to an extent substantially
consistent with the Executive's present business travel
obligations;
(iv) Any purported termination of the Executive's employment for
Cause, Disability or Retirement which is not effected pursuant
to a Notice of Termination satisfying the requirements of
paragraph (j) below; or
(v) The failure by the Corporation to obtain the assumption of and
agreement to perform this Agreement by any successor as
contemplated in Section 9 hereof.
(i) IRS. IRS shall mean the Internal Revenue Service.
(j) NOTICE OF TERMINATION. Any purported termination of the Executive's
employment by the Corporation for any reason, including without limitation for
Cause, Disability or Retirement, or by the Executive for any reason, including
without limitation for Good Reason, shall be communicated by written "Notice of
Termination" to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated,
(iii) specifies a Date of Termination, which shall be not less than thirty (30)
nor more than ninety (90) days after such Notice of Termination is given, except
in the case of the Corporation's termination of the Executive's employment for
Cause, which shall be effective immediately; and (iv) is given in the manner
specified in Section 10 hereof.
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(k) RETIREMENT. "Retirement" shall mean voluntary termination by the
Executive in accordance with the Employers' retirement policies, including early
retirement, generally applicable to their salaried employees.
(l) GENDER NEUTRAL PRONOUN USAGE. The use of the masculine pronoun shall
be deemed to include the feminine pronoun throughout this Agreement.
2. TERM OF EMPLOYMENT.
(a) The Corporation hereby employs the Executive as President, Chief
Operating Officer and Secretary and the Executive hereby accepts said employment
and agrees to render such services to the Corporation on the terms and
conditions set forth in this Agreement. The term of employment under this
Agreement shall be for three years, commencing on the date of this Agreement
and, upon approval of the Board of Directors of the Corporation, shall extend
for an additional year on each annual anniversary of the date of this Agreement
such that at any time the remaining term of this Agreement shall be from two to
three years. Prior to the first annual anniversary of the date of this Agreement
and each annual anniversary thereafter, the Board of Directors of the
Corporation shall consider and review (taking into account all relevant factors,
including the Executive's performance hereunder) an extension of the term of
this Agreement, and the term shall continue to extend each year if the Board of
Directors approves such extension unless the Executive gives written notice to
the Employers of the Executive's election not to extend the term, with such
written notice to be given not less than thirty (30) days prior to any such
anniversary date. If the Board of Directors elects not to extend the term, it
shall give written notice of such decision to the Executive not less than thirty
(30) days prior to any such anniversary date. If any party gives timely notice
that the term will not be extended as of any annual anniversary date, then this
Agreement shall terminate at the conclusion of its remaining term. References
herein to the term of this Agreement shall refer both to the initial term and
successive terms.
(b) During the term of this Agreement, the Executive shall perform such
executive services for the Corporation as may be consistent with his titles and
from time to time assigned to him by the Corporation's Board of Directors.
3. COMPENSATION AND BENEFITS.
(a) The Employers shall compensate and pay the Executive for his services
during the term of this Agreement at a minimum Base Salary of $205,000 per year,
which may be increased from time to time in such amounts as may be determined by
the Boards of Directors of the Employers and may not be decreased without the
Executive's express written consent. In addition to his Base Salary, the
Executive shall be entitled to receive during the term of this Agreement such
bonus payments as may be determined by the Boards of Directors of the Employers.
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(b) During the term of this Agreement, the Executive shall be entitled to
participate in and receive the benefits of any pension or other retirement
benefit plan, profit sharing, stock option, employee stock ownership, or other
plans, benefits and privileges given to employees and executives of the
Employers, to the extent commensurate with his then duties and responsibilities,
as fixed by the Boards of Directors of the Employers. The Corporation shall not
make any changes in such plans, benefits or privileges which would adversely
affect the Executive's rights or benefits thereunder, unless such change occurs
pursuant to a program applicable to all executive officers of the Corporation
and does not result in a proportionately greater adverse change in the rights of
or benefits to the Executive as compared with any other executive officer of the
Corporation. Nothing paid to the Executive under any plan or arrangement
presently in effect or made available in the future shall be deemed to be in
lieu of the salary payable to the Executive pursuant to Section 3(a) hereof.
(c) During the term of this Agreement, the Executive shall be entitled to
paid annual vacation in accordance with the policies as established from time to
time by the Boards of Directors of the Employers, which shall in no event be
less than four weeks per annum. The Executive shall not be entitled to receive
any additional compensation from the Employers for failure to take a vacation,
nor shall the Executive be able to accumulate unused vacation time from one year
to the next, except to the extent authorized by the Boards of Directors of the
Employers.
(d) During the term of this Agreement, in keeping with past practices, the
Employers shall continue to provide the Executive with the use of an
Employer-owned automobile appropriate to his positions with the Employers and to
pay all costs associated with such automobile, including registration,
licensing, insurance and costs of operation.
(e) In the event the Executive's employment is terminated by the
Corporation for any reason other than Cause, the Employers shall provide
continued group insurance (other than disability insurance unless the Executive
was disabled and was receiving disability insurance benefits prior to the Date
of Termination), life insurance, and health and accident insurance substantially
identical to the coverage maintained by the Employers for the Executive
immediately prior to his termination. Such coverage shall cease upon the
expiration of the remaining term of this Agreement.
(f) The Executive's compensation, benefits and expenses shall be paid by
the Corporation and the Bank in the same proportion as the time and services
actually expended by the Executive on behalf of each respective Employer.
4. EXPENSES. The Employers shall reimburse the Executive or otherwise
provide for or pay for all reasonable expenses incurred by the Executive in
furtherance of or in connection with the business of the Employers, including,
but not by way of limitation, automobile expenses described in Section 3(d)
hereof, traveling expenses, and all reasonable entertainment expenses (whether
incurred at the Executive's residence, while traveling or
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otherwise), subject to such reasonable documentation and other limitations as
may be established by the Boards of Directors of the Employers. If such expenses
are paid in the first instance by the Executive, the Employers shall reimburse
the Executive therefor.
5. TERMINATION.
(a) The Corporation shall have the right, at any time upon prior Notice of
Termination, to terminate the Executive's employment hereunder for any reason,
including without limitation termination for Cause, Disability or Retirement,
and the Executive shall have the right, upon prior Notice of Termination, to
terminate his employment hereunder for any reason. The Executive's employment
and his status as an officer shall terminate (i) immediately upon being given a
Notice of Termination for Cause, or (ii) on the Date of Termination for any
other reason.
(b) In the event that (i) the Executive's employment is terminated by the
Corporation for Cause or (ii) the Executive terminates his employment hereunder
other than for Disability, Retirement, death or Good Reason, the Executive shall
have no right pursuant to this Agreement to compensation or other benefits for
any period after the applicable Date of Termination.
(c) In the event that the Executive's employment is terminated as a result
of Disability, Retirement or the Executive's death during the term of this
Agreement, the Executive shall have no right pursuant to this Agreement to
compensation or other benefits for any period after the applicable Date of
Termination, except as provided for in Section 3(e) hereof.
(d) In the event that (i) the Executive's employment is terminated by the
Corporation for other than Cause, Disability, Retirement or the Executive's
death or (ii) such employment is terminated by the Executive (a) due to a
material breach of this Agreement by the Corporation, which breach has not been
cured within fifteen (15) days after a written notice of non-compliance has been
given by the Executive to the Employers, or (b) for Good Reason, then the
Corporation shall
(A) pay to the Executive, within thirty (30) days following the Date
of Termination, a lump sum cash severance amount equal to three (3) times
that portion of the Executive's Average Annual Compensation paid by the
Corporation, and
(B) maintain and provide for a period ending at the earlier of (i)
the expiration of thirty-six (36) months from the Executive's Date of
Termination or (ii) the date of the Executive's full-time employment by
another employer (provided that the Executive is entitled under the terms
of such employment to benefits substantially similar to those described in
this subparagraph (B)), on a tax-adjusted basis at no cost to the
Executive, the Executive's continued participation in all group
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insurance (other than disability insurance unless the Executive was
disabled and was receiving disability insurance benefits prior to the Date
of Termination), life insurance, health and accident insurance, and other
employee benefit plans, programs and arrangements offered by the
Corporation in which the Executive was entitled to participate immediately
prior to the Date of Termination (other than stock option, employee stock
ownership and restricted stock plans of the Employers).
6. PAYMENT OF ADDITIONAL BENEFITS UNDER CERTAIN CIRCUMSTANCES.
(a) If the payments and benefits pursuant to Section 5 hereof, either
alone or together with other payments and benefits which the Executive has the
right to receive from the Employers (including, without limitation, the payments
and benefits which the Executive would have the right to receive from the Bank
pursuant to Section 5 of the Agreement between the Bank and the Executive dated
December 9, 1997 ("Bank Agreement"), before giving effect to any reduction in
such amounts pursuant to Section 6 of the Bank Agreement), would constitute a
"parachute payment" as defined in Section 280G(b)(2) of the Code (the "Initial
Parachute Payment," which includes the amounts paid pursuant to clause (A)
below), then the Corporation shall pay to the Executive, in thirty-six (36)
equal monthly installments beginning with the first business day of the month
following the Date of Termination or in a lump sum within five business days of
the Date of Termination (at the Executive's election), a cash amount equal to
the sum of the following:
(A) the amount by which the payments and benefits that would have
otherwise been paid by the Bank to the Executive pursuant to Section 5 of
the Bank Agreement are reduced by the provisions of Section 6 of the Bank
Agreement;
(B) twenty (20) percent (or such other percentage equal to the tax
rate imposed by Section 4999 of the Code) of the amount by which the
Initial Parachute Payment exceeds the Executive's "base amount" from the
Employers, as defined in Section 280G(b)(3) of the Code, with the
difference between the Initial Parachute Payment and the Executive's base
amount being hereinafter referred to as the "Initial Excess Parachute
Payment";
(C) such additional amount (tax allowance) as may be necessary to
compensate the Executive for the payment by the Executive of state and
federal income and excise taxes on the payment provided under clause (B)
above and on any
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payments under this clause (C). In computing such tax allowance, the
payment to be made under clause (B) above shall be multiplied by the
"gross up percentage" ("GUP"). The GUP shall be determined as follows:
Tax Rate
GUP = -----------
1- Tax Rate
The Tax Rate for purposes of computing the GUP shall be the highest
marginal federal and state income and employment-related tax rate,
including any applicable excise tax rate, applicable to the Executive in
the year in which the payment under clause (B) above is made.
(b) Notwithstanding the foregoing, if it shall subsequently be determined
in a final judicial determination or a final administrative settlement to which
the Executive is a party that the actual excess parachute payment as defined in
Section 280G(b)(1) of the Code is different from the Initial Excess Parachute
Payment (such different amount being hereafter referred to as the "Determinative
Excess Parachute Payment"), then the Corporation's independent tax counsel or
accountants shall determine the amount (the "Adjustment Amount") which either
the Executive must pay to the Corporation or the Corporation must pay to the
Executive in order to put the Executive (or the Corporation, as the case may be)
in the same position the Executive (or the Corporation, as the case may be)
would have been if the Initial Excess Parachute Payment had been equal to the
Determinative Excess Parachute Payment. In determining the Adjustment Amount,
the independent tax counsel or accountants shall take into account any and all
taxes (including any penalties and interest) paid by or for the Executive or
refunded to the Executive or for the Executive's benefit. As soon as practicable
after the Adjustment Amount has been so determined, the Corporation shall pay
the Adjustment Amount to the Executive or the Executive shall repay the
Adjustment Amount to the Corporation, as the case may be.
(c) In each calendar year that the Executive receives payments of benefits
under this Section 6, the Executive shall report on his state and federal income
tax returns such information as is consistent with the determination made by the
independent tax counsel or accountants of the Corporation as described above.
The Corporation shall indemnify and hold the Executive harmless from any and all
losses, costs and expenses (including without limitation, reasonable attorneys'
fees, interest, fines and penalties) which the Executive incurs as a result of
so reporting such information. The Executive shall promptly notify the
Corporation in writing whenever the Executive receives notice of the institution
of a judicial or administrative proceeding, formal or informal, in which the
federal tax treatment under Section 4999 of the Code of any amount paid or
payable under this Section 6 is being reviewed or is in dispute. The Corporation
shall assume control at its expense over all legal and accounting matters
pertaining to such federal tax treatment (except to the extent necessary or
appropriate for the Executive to resolve any such proceeding with respect to any
matter unrelated to amounts paid or payable pursuant to this Section 6) and the
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Executive shall cooperate fully with the Corporation in any such proceeding. The
Executive shall not enter into any compromise or settlement or otherwise
prejudice any rights the Corporation may have in connection therewith without
the prior consent of the Corporation.
7. MITIGATION; EXCLUSIVITY OF BENEFITS.
(a) The Executive, unless his employment is terminated for Disability,
Retirement, death, a Change in Control of the Corporation or pursuant to Section
5(d)(ii) hereof, shall be required to mitigate the amount of any payments and
benefits hereunder by seeking other employment or otherwise. In the event that
the Executive obtains other employment during the period that the Executive is
receiving payments pursuant to Section 5(d)(i) hereof, the cash amounts to be
paid to the Executive pursuant thereto shall be reduced by any compensation
received by the Executive as a result of employment by another employer after
the Date of Termination, unless the termination was in connection with a Change
in Control of the Corporation.
(b) The specific arrangements referred to herein are not intended to
exclude any other benefits which may be available to the Executive upon a
termination of employment with the Employers pursuant to employee benefit plans
of the Employers or otherwise.
8. WITHHOLDING. All payments required to be made by the Corporation
hereunder to the Executive shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Corporation may
reasonably determine should be withheld pursuant to any applicable law or
regulation.
9. ASSIGNABILITY. The Corporation may assign this Agreement and its
rights and obligations hereunder in whole, but not in part, to any corporation,
bank or other entity with or into which the Corporation may hereafter merge or
consolidate or to which the Corporation may transfer all or substantially all of
its assets, if in any such case said corporation, bank or other entity shall by
operation of law or expressly in writing assume all obligations of the
Corporation hereunder as fully as if it had been originally made a party hereto,
but may not otherwise assign this Agreement or its rights and obligations
hereunder. The Executive may not assign or transfer this Agreement or any rights
or obligations hereunder.
10. 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:
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To the Corporation: Secretary
Commonwealth Bancorp, Inc.
0 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
To the Bank: Secretary
Commonwealth Bank
0 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
To the Executive: Xxxxxxx X. Xxxx
00 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
11. CONFIDENTIALITY. The Executive acknowledges that by virtue of his
employment hereunder, he will maintain an intimate knowledge of the activities
and affairs of the Employers, including confidential matters. As a result, the
Executive agrees to maintain the confidentiality of all confidential information
relating to the Employers during the term of employment hereunder and any period
that the Executive may be receiving payments pursuant to this Agreement,
provided that nothing in this Section 11 shall be deemed to prevent the
Executive from either (a) being employed by any other corporation, firm or
entity upon termination of the Executive's employment by the Employers as long
as the Executive does not violate the foregoing proscription, or (b) responding
to inquiries from regulatory authorities.
12. ARBITRATION. The Executive and the Employers agree to submit to final
and binding arbitration pursuant to the rules of the American Arbitration
Association, any and all claims arising from the termination, for any reason, of
the Executive's employment by the Employers including, but not limited to:
(a) any and all claims for wages and benefits (including without
limitation salary, stock, commissions, royalties, license fees, health and
welfare benefits, severance pay, vacation pay, and bonuses);
(b) any and all claims for wrongful discharge and breach of contract
(whether express or implied), and implied covenants of good faith and fair
dealing;
(c) any and all claims for alleged employment discrimination on the basis
of age, race, color, religion, sex, national origin, veteran status, disability
and/or handicap, in violation of any federal, state or local statute, ordinance,
judicial precedent or executive order, including but not limited to claims for
discrimination under the following statutes: Title VII of the Civil Rights Act
of 1964, 42 U.S.C. Section 2000 et. seq., the Civil Rights Act of 1866, 42
U.S.C. Section 1981, the Age Discrimination in Employment Act, as amended, 29
U.S.C.
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Section 621 et. seq., the Older Workers Benefit Protection Act, the
Rehabilitation Act of 1972, as amended, 29 U.S.C. Section 701 et. seq., the
Americans with Disabilities Act, 42 U.S.C. Section 12101 et. seq., and the
Pennsylvania Human Relations Act, 43 P.S. Section 951 et. seq.;
(d) any and all claims under any federal or state statute relating to
employee benefits or pensions;
(e) any and all claims in tort (including but not limited to any claims
for misrepresentation, defamation, interference with contract or prospective
economic advantage, intentional infliction of emotional distress and
negligence); and
(f) any and all claims for attorney's fees and costs.
13. AMENDMENT; WAIVER. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer or officers as may be
specifically designated by the Board of Directors of the Corporation to sign on
its behalf. No waiver by any party hereto at any time of any breach by any other
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
14. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United States
where applicable and otherwise by the substantive laws of the Commonwealth of
Pennsylvania.
15. NATURE OF OBLIGATIONS. Nothing contained herein shall create or
require the Corporation to create a trust of any kind to fund any benefits which
may be payable hereunder, and to the extent that the Executive acquires a right
to receive benefits from the Corporation hereunder, such right shall be no
greater than the right of any unsecured general creditor of the Corporation.
16. HEADINGS. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
17. VALIDITY. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
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19. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the Corporation and the Executive with respect to the matters agreed to
herein. All prior agreements between the Corporation and the Executive with
respect to the matters agreed to herein, including without limitation the
Agreement between the Employers and the Executive dated January 1, 1997, are
hereby superseded and shall have no force or effect. Notwithstanding the
foregoing, nothing contained in this Agreement shall affect the agreement of
even date being entered into between the Bank and the Executive.
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
Attest: COMMONWEALTH BANCORP, INC.
---------------------------- By:
Xxxxxxx X. Xxxxxxx, Chairman ---------------------------
of the Board ------------------------,
Director and Member of the
Compensation and Benefits
Committee of the Board of
Directors
Witness: EXECUTIVE
By:
---------------------------- ------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxx
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AGREEMENT
AGREEMENT, dated this 9th day of December 1997, between Commonwealth Bank
(the "Bank"), a federally chartered savings bank, and Xxxxxxx X. Xxxx (the
"Executive").
WITNESSETH
WHEREAS, the Executive is presently President, Chief Operating Officer and
Secretary of Commonwealth Bancorp, Inc. (the "Corporation") and the Bank
(together, the "Employers");
WHEREAS, the Employers desire to be ensured of the Executive's continued
active participation in the business of the Employers, and the Bank desires to
have this new Agreement supersede its current agreement with the Executive dated
January 1, 1997;
WHEREAS, in accordance with Office of Thrift Supervision ("OTS")
Regulatory Bulletin 27a, the Corporation and the Bank desire to enter into
separate agreements with the Executive with respect to his employment by each of
the Employers; and
WHEREAS, in order to induce the Executive to remain in the employ of the
Employers and in consideration of the Executive's agreeing to remain in the
employ of the Employers, the parties desire to specify the terms of such
employment, including the severance benefits which shall be due the Executive by
the Bank in the event that his employment with the Bank is terminated under
specified circumstances;
NOW THEREFORE, in consideration of the mutual agreements herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. DEFINITIONS. The following words and terms shall have the meanings set
forth below for the purposes of this Agreement:
(a) AVERAGE ANNUAL COMPENSATION. The Executive's "Average Annual
Compensation" for purposes of this Agreement shall be deemed to mean the average
level of compensation paid to the Executive by the Employers or any subsidiary
thereof during the most recent five taxable years preceding the Date of
Termination, including Base Salary (as defined in Section 1(b) hereof) and
bonuses paid to the Executive but excluding amounts relating to the vesting of
Management Recognition Plan shares.
(b) BASE SALARY. "Base Salary" shall mean the Executive's annual salary
exclusive of any pension or other retirement plan, profit sharing, stock option,
employee stock ownership, or other plans, benefits and privileges given to
employees and executives of the Employers.
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(c) CAUSE. Termination by the Bank of the Executive's employment for
"Cause" shall mean termination because of personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of any law, rule
or regulation (other than traffic violations or similar offenses) or final
cease-and-desist order or material breach of any provision of this Agreement.
(d) CHANGE IN CONTROL OF THE CORPORATION. "Change in Control of the
Corporation" shall mean a change in control of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), or any successor thereto, whether or not the Corporation is registered
under the Exchange Act; provided that, without limitation, such a change in
control shall be deemed to have occurred if (i) any "person" (as such 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 Corporation representing 25% or more of the
combined voting power of the Corporation's then outstanding securities; or (ii)
during any period of two consecutive years, 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, or the
nomination for election by stockholders, of each new director was approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
(e) CODE. "Code" shall mean the Internal Revenue Code of 1986, as amended.
(f) DATE OF TERMINATION. "Date of Termination" shall mean the date the
Executive's employment is terminated for any reason, as specified in the Notice
of Termination.
(g) DISABILITY. Termination by the Bank of the Executive's employment
based on "Disability" shall mean termination because of any physical or mental
impairment which qualifies the Executive for disability benefits under the
applicable long-term disability plan maintained by the Employers or any
subsidiary or, if no such plan applies, which would qualify the Executive for
disability benefits under the Federal Social Security System.
(h) GOOD REASON. Termination by the Executive of the Executive's
employment for "Good Reason" shall mean termination by the Executive within one
year following a Change in Control of the Corporation based on:
(i) Without the Executive's express written consent, the failure
to elect or to re-elect or to appoint or to re-appoint the
Executive to the offices of President, Chief Operating Officer
and Secretary of the Employers or a material adverse change
made by the Employers in the Executive's functions, duties or
responsibilities as President, Chief
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Operating Officer and Secretary of the Employers as they
existed immediately prior to a Change in Control of the
Corporation;
(ii) Without the Executive's express written consent, a reduction
by either of the Employers in the Executive's Base Salary as
the same may be increased from time to time or, except to the
extent permitted by Section 3(b) hereof, a reduction in the
package of fringe benefits provided to the Executive, taken as
a whole;
(iii) The principal executive office of either of the Employers is
relocated more than 25 miles from the current principal
executive office or, without the Executive's express written
consent, either of the Employers requires the Executive to be
based anywhere other than an area in which the Employers'
principal executive office is located, except for required
travel on business of the Employers to an extent substantially
consistent with the Executive's present business travel
obligations;
(iv) Any purported termination of the Executive's employment for
Cause, Disability or Retirement which is not effected pursuant
to a Notice of Termination satisfying the requirements of
paragraph (j) below; or
(v) The failure by the Bank to obtain the assumption of and
agreement to perform this Agreement by any successor as
contemplated in Section 9 hereof.
(i) IRS. IRS shall mean the Internal Revenue Service.
(j) NOTICE OF TERMINATION. Any purported termination of the Executive's
employment by the Bank for any reason, including without limitation for Cause,
Disability or Retirement, or by the Executive for any reason, including without
limitation for Good Reason, shall be communicated by written "Notice of
Termination" to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated,
(iii) specifies a Date of Termination, which shall be not less than thirty (30)
nor more than ninety (90) days after such Notice of Termination is given, except
in the case of the Bank's termination of the Executive's employment for Cause,
which shall be effective immediately; and (iv) is given in the manner specified
in Section 10 hereof.
(k) RETIREMENT. "Retirement" shall mean voluntary termination by the
Executive in accordance with the Employers' retirement policies, including early
retirement, generally applicable to their salaried employees.
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(l) GENDER NEUTRAL PRONOUN USAGE. The use of the masculine pronoun shall
be deemed to include the feminine pronoun throughout this Agreement.
2. TERM OF EMPLOYMENT.
(a) The Bank hereby employs the Executive as President, Chief Operating
Officer and Secretary and the Executive hereby accepts said employment and
agrees to render such services to the Bank on the terms and conditions set forth
in this Agreement. The term of employment under this Agreement shall be for
three years, commencing on the date of this Agreement and, upon approval of the
Board of Directors of the Bank, shall extend for an additional year on each
annual anniversary of the date of this Agreement such that at any time the
remaining term of this Agreement shall be from two to three years. Prior to the
first annual anniversary of the date of this Agreement and each annual
anniversary thereafter, the Board of Directors of the Bank shall consider and
review (taking into account all relevant factors, including the Executive's
performance hereunder) an extension of the term of this Agreement, and the term
shall continue to extend each year if the Board of Directors approves such
extension unless the Executive gives written notice to the Employers of the
Executive's election not to extend the term, with such written notice to be
given not less than thirty (30) days prior to any such anniversary date. If the
Board of Directors elects not to extend the term, it shall give written notice
of such decision to the Executive not less than thirty (30) days prior to any
such anniversary date. If any party gives timely notice that the term will not
be extended as of any annual anniversary date, then this Agreement shall
terminate at the conclusion of its remaining term. References herein to the term
of this Agreement shall refer both to the initial term and successive terms.
(b) During the term of this Agreement, the Executive shall perform such
executive services for the Bank as may be consistent with his titles and from
time to time assigned to him by the Bank's Board of Directors.
3. COMPENSATION AND BENEFITS.
(a) The Employers shall compensate and pay the Executive for his services
during the term of this Agreement at a minimum Base Salary of $205,000 per year,
which may be increased from time to time in such amounts as may be determined by
the Boards of Directors of the Employers and may not be decreased without the
Executive's express written consent. In addition to his Base Salary, the
Executive shall be entitled to receive during the term of this Agreement such
bonus payments as may be determined by the Boards of Directors of the Employers.
(b) During the term of this Agreement, the Executive shall be entitled to
participate in and receive the benefits of any pension or other retirement
benefit plan, profit sharing, stock option, employee stock ownership, or other
plans, benefits and privileges given to employees and executives of the
Employers, to the extent commensurate with his then duties and responsibilities,
as fixed by the Boards of Directors of the Employers. The Bank
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shall not make any changes in such plans, benefits or privileges which would
adversely affect the Executive's rights or benefits thereunder, unless such
change occurs pursuant to a program applicable to all executive officers of the
Bank and does not result in a proportionately greater adverse change in the
rights of or benefits to the Executive as compared with any other executive
officer of the Bank. Nothing paid to the Executive under any plan or arrangement
presently in effect or made available in the future shall be deemed to be in
lieu of the salary payable to the Executive pursuant to Section 3(a) hereof.
(c) During the term of this Agreement, the Executive shall be entitled to
paid annual vacation in accordance with the policies as established from time to
time by the Boards of Directors of the Employers, which shall in no event be
less than four weeks per annum. The Executive shall not be entitled to receive
any additional compensation from the Employers for failure to take a vacation,
nor shall the Executive be able to accumulate unused vacation time from one year
to the next, except to the extent authorized by the Boards of Directors of the
Employers.
(d) During the term of this Agreement, in keeping with past practices, the
Employers shall continue to provide the Executive with the use of an
Employer-owned automobile appropriate to his positions with the Employers and to
pay all costs associated with such automobile, including registration,
licensing, insurance and costs of operation.
(e) In the event the Executive's employment is terminated by the Bank for
any reason other than Cause, the Employers shall provide continued group
insurance (other than disability insurance unless the Executive was disabled and
was receiving disability insurance benefits prior to the Date of Termination),
life insurance, and health and accident insurance substantially identical to the
coverage maintained by the Employers for the Executive immediately prior to his
termination. Such coverage shall cease upon the expiration of the remaining term
of this Agreement.
(f) The Executive's compensation, benefits and expenses shall be paid by
the Corporation and the Bank in the same proportion as the time and services
actually expended by the Executive on behalf of each respective Employer.
4. EXPENSES. The Employers shall reimburse the Executive or otherwise
provide for or pay for all reasonable expenses incurred by the Executive in
furtherance of or in connection with the business of the Employers, including,
but not by way of limitation, automobile expenses described in Section 3(d)
hereof, traveling expenses, and all reasonable entertainment expenses (whether
incurred at the Executive's residence, while traveling or otherwise), subject to
such reasonable documentation and other limitations as may be established by the
Boards of Directors of the Employers. If such expenses are paid in the first
instance by the Executive, the Employers shall reimburse the Executive therefor.
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5. TERMINATION.
(a) The Bank shall have the right, at any time upon prior Notice of
Termination, to terminate the Executive's employment hereunder for any reason,
including without limitation termination for Cause, Disability or Retirement,
and the Executive shall have the right, upon prior Notice of Termination, to
terminate his employment hereunder for any reason. The Executive's employment
and his status as an officer shall terminate (i) immediately upon being given a
Notice of Termination for Cause, or (ii) on the Date of Termination for any
other reason.
(b) In the event that (i) the Executive's employment is terminated by the
Bank for Cause or (ii) the Executive terminates his employment hereunder other
than for Disability, Retirement, death or Good Reason, the Executive shall have
no right pursuant to this Agreement to compensation or other benefits for any
period after the applicable Date of Termination.
(c) In the event that the Executive's employment is terminated as a result
of Disability, Retirement or the Executive's death during the term of this
Agreement, the Executive shall have no right pursuant to this Agreement to
compensation or other benefits for any period after the applicable Date of
Termination, except as provided for in Section 3(e) hereof.
(d) In the event that (i) the Executive's employment is terminated by the
Bank for other than Cause, Disability, Retirement or the Executive's death or
(ii) such employment is terminated by the Executive (a) due to a material breach
of this Agreement by the Bank, which breach has not been cured within fifteen
(15) days after a written notice of non-compliance has been given by the
Executive to the Employers, or (b) for Good Reason, then the Bank shall, subject
to the provisions of Section 6 hereof, if applicable
(A) pay to the Executive, within thirty (30) days following the Date
of Termination, a lump sum cash severance amount equal to three (3) times
that portion of the Executive's Average Annual Compensation paid by the
Corporation, and
(B) maintain and provide for a period ending at the earlier of (i)
the expiration of thirty-six (36) months from the Executive's Date of
Termination or (ii) the date of the Executive's full-time employment by
another employer (provided that the Executive is entitled under the terms
of such employment to benefits substantially similar to those described in
this subparagraph (B)), on a tax-adjusted basis at no cost to the
Executive, the Executive's continued participation in all group insurance
(other than disability insurance unless the Executive was disabled and was
receiving disability insurance benefits prior to the Date of Termination),
life insurance, health and accident insurance, and other employee benefit
plans, programs and arrangements offered by the Corporation in which the
Executive was entitled to
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participate immediately prior to the Date of Termination (other than stock
option, employee stock ownership and restricted stock plans of the
Employers).
6. LIMITATION OF BENEFITS UNDER CERTAIN CIRCUMSTANCES. If the payments
and benefits pursuant to Section 5 hereof, either alone or together with other
payments and benefits which the Executive has the right to receive from the
Bank, would constitute a "parachute payment" under Section 280G of the Code, the
payments and benefits payable by the Bank pursuant to Section 5 hereof shall be
reduced, in the manner determined by the Executive, by the amount, if any, which
is the minimum necessary to result in no portion of the payments and benefits
payable by the Bank under Section 5 being non-deductible to the Bank pursuant to
Section 280G of the Code and subject to the excise tax imposed under Section
4999 of the Code. The parties hereto agree that the payments and benefits
payable pursuant to this Agreement by the Bank to the Executive upon termination
shall be limited to three times the Executive's "base amount" (as defined in
Section 280G(b)(3) of the Code) in accordance with OTS Regulatory Bulletin 27a.
The determination of any reduction in the payments and benefits to be made
pursuant to Section 5 shall be based upon the opinion of independent tax counsel
selected by the Bank's independent public accountants and paid by the Bank. Such
counsel shall be reasonably acceptable to the Bank and the Executive; shall
promptly prepare the foregoing opinion, but in no event later than thirty (30)
days from the Date of Termination; and may use such actuaries as such counsel
deems necessary or advisable for the purpose. Nothing contained herein shall
result in a reduction of any payments or benefits to which the Executive may be
entitled upon termination of employment under any circumstances other than as
specified in this Section 6, or a reduction in the payments and benefits
specified in Section 5 below zero.
7. MITIGATION; EXCLUSIVITY OF BENEFITS.
(a) The Executive, unless his employment is terminated for Disability,
Retirement, death, a Change in Control of the Corporation or pursuant to Section
5(d)(ii) hereof, shall be required to mitigate the amount of any payments and
benefits hereunder by seeking other employment or otherwise. In the event that
the Executive obtains other employment during the period that the Executive is
receiving payments pursuant to Section 5(d)(i) hereof, the cash amounts to be
paid to the Executive pursuant thereto shall be reduced by any compensation
received by the Executive as a result of employment by another employer after
the Date of Termination, unless the termination was in connection with a Change
in Control of the Corporation.
(b) The specific arrangements referred to herein are not intended to
exclude any other benefits which may be available to the Executive upon a
termination of employment with the Employers pursuant to employee benefit plans
of the Employers or otherwise.
8. WITHHOLDING. All payments required to be made by the Bank hereunder to
the Executive shall be subject to the withholding of such amounts, if any,
relating to tax and
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other payroll deductions as the Bank may reasonably determine should be withheld
pursuant to any applicable law or regulation.
9. ASSIGNABILITY. The Bank may assign this Agreement and its rights and
obligations hereunder in whole, but not in part, to any corporation, bank or
other entity with or into which the Bank may hereafter merge or consolidate or
to which the Bank may transfer all or substantially all of its assets, if in any
such case said corporation, bank or other entity shall by operation of law or
expressly in writing assume all obligations of the Bank hereunder as fully as if
it had been originally made a party hereto, but may not otherwise assign this
Agreement or its rights and obligations hereunder. The Executive may not assign
or transfer this Agreement or any rights or obligations hereunder.
10. 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:
To the Bank: Secretary
Commonwealth Bank
0 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
To the Corporation: Secretary
Commonwealth Bancorp, Inc.
0 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
To the Executive: Xxxxxxx X. Xxxx
00 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
11. CONFIDENTIALITY. The Executive acknowledges that by virtue of his
employment hereunder, he will maintain an intimate knowledge of the activities
and affairs of the Employers, including confidential matters. As a result, the
Executive agrees to maintain the confidentiality of all confidential information
relating to the Employers during the term of employment hereunder and any period
that the Executive may be receiving payments pursuant to this Agreement,
provided that nothing in this Section 11 shall be deemed to prevent the
Executive from either (a) being employed by any other corporation, firm or
entity upon termination of the Executive's employment by the Employers as long
as the Executive does not violate the foregoing prescription, or (b) responding
to inquiries from regulatory authorities.
12. ARBITRATION. The Executive and the Employers agree to submit to final
and binding arbitration pursuant to the rules of the American Arbitration
Association, any and
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all claims arising from the termination, for any reason, of the Executive's
employment by the Employers including, but not limited to:
(a) any and all claims for wages and benefits (including without
limitation salary, stock, commissions, royalties, license fees, health and
welfare benefits, severance pay, vacation pay, and bonuses);
(b) any and all claims for wrongful discharge and breach of contract
(whether express or implied), and implied covenants of good faith and fair
dealing;
(c) any and all claims for alleged employment discrimination on the basis
of age, race, color, religion, sex, national origin, veteran status, disability
and/or handicap, in violation of any federal, state or local statute, ordinance,
judicial precedent or executive order, including but not limited to claims for
discrimination under the following statutes: Title VII of the Civil Rights Act
of 1964, 42 U.S.C. Section 2000 et. seq., the Civil Rights Act of 1866, 42
U.S.C. Section 1981, the Age Discrimination in Employment Act, as amended, 29
U.S.C. Section 621 et. seq., the Older Workers Benefit Protection Act, the
Rehabilitation Act of 1972, as amended, 29 U.S.C. Section 701 et. seq., the
Americans with Disabilities Act, 42 U.S.C. Section 12101 et. seq., and the
Pennsylvania Human Relations Act, 43 P.S. Section 951 et. seq.;
(d) any and all claims under any federal or state statute relating to
employee benefits or pensions;
(e) any and all claims in tort (including but not limited to any claims
for misrepresentation, defamation, interference with contract or prospective
economic advantage, intentional infliction of emotional distress and
negligence); and
(f) any and all claims for attorney's fees and costs.
13. AMENDMENT; WAIVER. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer or officers as may be
specifically designated by the Board of Directors of the Bank to sign on its
behalf. No waiver by any party hereto at any time of any breach by any other
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
14. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United States
where applicable and otherwise by the substantive laws of the Commonwealth of
Pennsylvania.
15. NATURE OF OBLIGATIONS. Nothing contained herein shall create or
require the Bank to create a trust of any kind to fund any benefits which may be
payable hereunder,
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and to the extent that the Executive acquires a right to receive benefits from
the Bank hereunder, such right shall be no greater than the right of any
unsecured general creditor of the Bank.
16. HEADINGS. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
17. VALIDITY. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
19. REGULATORY ACTIONS. The following provisions shall be applicable to
the parties to the extent that they are required to be included in employment
agreements between a savings bank and its employees pursuant to Section
563.39(b) of the Regulations Applicable to all Savings Associations, 12 C.F.R.
Section 563.39(b), or any successor thereto, and shall be controlling in the
event of a conflict with any other provision of this Agreement, including
without limitation Section 5 hereof.
(a) If the Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's affairs pursuant to
notice served under Section 8(e)(3) or Section 8(g)(1) of the Federal Deposit
Insurance Act ("FDIA")(12 U.S.C. Sections 1818(e)(3) and 1818(g)(1)), the
Bank's obligations under this Agreement shall be suspended as of the date of
service, unless stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Bank may, in its discretion: (i) pay the Executive all or
part of the compensation withheld while its obligations under this Agreement
were suspended, and (ii) reinstate (in whole or in part) any of its obligations
which were suspended.
(b) If the Executive is removed from office and/or permanently prohibited
from participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) or Section 8(g)(1) of the FDIA (12 U.S.C. Sections 1818(e)(4)
and (g)(1)), all obligations of the Bank under this Agreement shall terminate as
of the effective date of the order, but vested rights of the Executive and the
Bank as of the date of termination shall not be affected.
(c) If the Bank is in default, as defined in Section 3(x)(1) of the FDIA
(12 U.S.C. Section 1813(x)(1)), all obligations under this Agreement shall
terminate as of the date of default, but vested rights of the Executive and the
Bank as of the date of termination shall not be affected.
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(d) All obligations under this Agreement shall be terminated pursuant to
12 C.F.R. Section 563.39(b)(5) (except to the extent that it is determined that
continuation of the Agreement for the continued operation of the Bank is
necessary): (i) by the Director of the OTS, or his/her designee, at the time the
Federal Deposit Insurance Corporation ("FDIC") enters into an agreement to
provide assistance to or on behalf of the Bank under the authority contained in
Section 13(c) of the FDIA (12 U.S.C. Section 1823(c)); or (ii) by the Director
of the OTS, or his/her designee, at the time the Director or his/her designee
approves a supervisory merger to resolve problems related to operation of the
Bank or when the Bank is determined by the Director of the OTS to be in an
unsafe or unsound condition, but vested rights of the Executive and the
Employers as of the date of termination shall not be affected.
20. REGULATORY PROHIBITION. Notwithstanding any other provision of this
Agreement to the contrary, any payments made to the Executive pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with Section 18(k) of the FDIA (12 U.S.C. Section 1828(k)) and any regulations
promulgated thereunder.
21. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the Bank and the Executive with respect to the matters agreed to herein.
All prior agreements between the Bank and the Executive with respect to the
matters agreed to herein, including without limitation the Agreement between the
Employers and the Executive dated January 1, 1997, are hereby superseded and
shall have no force or effect. Notwithstanding the foregoing, nothing contained
in this Agreement shall affect the agreement of even date being entered into
between the Corporation and the Executive.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
Attest: COMMONWEALTH BANK
By:
____________________________ __________________________________
Xxxxxxx X. Xxxxxxx, Chairman __________________, Director and
of the Board Member of the Compensation and
Benefits Committee of the Board
of Directors
Witness: EXECUTIVE
By:
____________________________ __________________________________
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxx
