Exhibit 10.N
Bryn Mawr Bank Corporation
January 11, 2001
Xx. Xxxxxxxxx X. Xxxxxx XX
000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Subject: Employment Agreement
Dear Xxx:
In consideration of the mutual promises herein contained and intending
to be legally bound, Bryn Mawr Bank Corporation (the "Corporation") and you, Xx.
Xxxxxxxxx X. Xxxxxx XX, agree that you will be employed by the Corporation and
by its wholly owned subsidiary, The Bryn Mawr Trust Company(the "Bank"), on the
following terms and conditions:
1. Your Employment by the Corporation.
(a) The Corporation hereby agrees to employ you, and you agree to
serve as the Corporation's and the Bank's President and Chief Executive Officer
during the term of employment set forth in Section 2 of this Agreement. You
shall report only to the Boards of Directors of the Corporation and Bank. You
hereby agree to keep the Boards of Directors of the Corporation and the Bank
fully advised concerning the operations of the Bank and Corporation. You agree
to serve as a director of the Corporation and Bank, as well as a member of any
committee of the Boards of Directors of the Corporation and the Bank to which
you may be elected or appointed. In addition, you agree to serve as a director
and/or officer of any other subsidiary of the Corporation or the Bank to which
you may be elected or appointed.
(b) On January 22, 2001 the Corporation's Board of Directors will
appoint you a director of the Corporation and arrange for you to be appointed a
director of the Bank on that date. The Corporation's Board of Directors hereby
agrees to immediately nominate you as a director of the Corporation and to
include you on the slate of directors which the Corporation
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nominates and recommends for election to its shareholders at its Annual
Shareholders Meeting scheduled to be held on April 17, 2001 and thereafter,
during the term of this Agreement, to retain you as a director of the
Corporation during the periods between election of the Corporation's directors.
Upon your appointment and election, respectively as a director of the
Corporation and the Bank, the Corporation as the sole shareholder of the Bank,
during the term of this Agreement, hereby agrees to arrange to include you on
the slate of Bank directors which the Corporation nominates and recommends for
election at the Bank's Annual Shareholders Meeting scheduled to be held on April
17, 2001, during the afternoon following the Corporation's shareholders meeting
and to vote its shares of Bank stock for your election as a director of the Bank
and thereafter, during the term of this Agreement, to retain you as a director
of the Bank during the periods between elections of the Bank's directors.
2. Term of Employment.
Your employment by the Corporation and the Bank as provided in Section
1 hereof will commence on January 22, 2001 (your "Employment Date") until
January 22, 2004 and on January 22, 2004, unless extended or sooner terminated
as provided herein, your employment period will be for an additional two (2)
year continuing period. Upon each new day of the two (2) year period of
employment until your sixty third birthday, the term of this Agreement
automatically shall be extended for one (1) additional day, to be added to the
end of the then existing two (2) year term. Accordingly, at all times prior to
(i) your attaining age sixty three (63) and (ii) your receipt of a Notice of
Termination (or an actual termination of your services hereunder), the term of
this Agreement shall be two (2) full years. However, either party may terminate
this Agreement by giving the other party written notice to terminate this
Agreement, subject to that party's obligations under this Agreement.
Additionally, the automatic extensions of the term of this Agreement shall
immediately be suspended upon an employment termination by reason of death,
disability, or Cause, as hereinafter defined. Notwithstanding anything in this
Agreement to the contrary, the Corporation, the Bank and their subsidiaries,
after your sixty fifth birthday, shall have no
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obligations under this Agreement, nor be liable in any regard, pursuant to this
Agreement, including making any payments to you.
3. Your Duties During the Term of Employment.
You shall devote your full business time (with allowances for
vacations and sick leave), attention and best efforts to the affairs of the
Corporation, the Bank and their subsidiaries during the term of employment
hereunder; provided, however, that you may serve as a director or trustee of
corporations or other entities and may engage in other activities to the extent
that they do not inhibit the performance of your duties hereunder, or conflict
with the business affairs of the Corporation, the Bank or their subsidiaries or
the Corporation's Code Of Ethics (the "Code Of Ethics"), a copy of which has
been reviewed by you.
You have reviewed with the Corporation's Board of Directors your
present directorships, public service commitments and personal business
interests, which are listed on Exhibit A attached hereto and incorporated by
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reference herein, and have obtained the Board's written approval for your
continuance in such present capacities, unless hereafter, the Board determines
in a particular case, that there is a potential conflict with the Corporation's
or the Bank's or their subsidiaries' best interests. Without prejudice to the
provisions of Section 10 of this Agreement, you hereby agree that your
acceptance of any future proposed directorships or positions in other
organizations will be subject to prior review and approval by the Corporation's
Board of Directors and compliance with the Code Of Ethics.
4. Compensation and Related Matters.
(a) Salary. During the term of your employment hereunder, the Bank
shall pay to you a salary at a rate of not less than Two Hundred Twenty Five
Thousand Dollars($225,000) per annum, in equal biweekly installments in arrears.
Such salary may be increased from time to time in accordance with normal
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business practices of the Bank. If your salary is so increased, it shall not
thereafter be decreased below Two Hundred Twenty Five Thousand Dollars
($225,000) during the term of this Agreement. Your compensation by salary
payments shall not be deemed your exclusive compensation hereunder and shall not
prevent you from participating in any of the Corporation's or Bank's incentive
compensation or benefit plans.
(b) Bonus. With respect to your employment by the Bank during the
calender year 2001 you shall be entitled to a bonus of Ninety Five Thousand
Dollars ($95,000), provided however, if the bonus that would be payable to you
as the Bank's President and Chief Executive Officer pursuant to the Bank's
Incentive Bonus Plan (the "Bonus Plan") would be greater than Ninety Five
Thousand Dollars ($95,000) you shall be entitled to the bonus payable to you
pursuant to the Bonus Plan in lieu of the Ninety Five Thousand Dollars ($95,000)
bonus. After the year 2001, you shall be entitled to a bonus of Twenty Thousand
Dollars ($20,000) per year during the years 2002, 2003, 2004 and 2005 in
addition to any bonus you may receive under the Bonus Plan, as it may be amended
from to time.
(c) Stock Options. On your Employment Date pursuant to this
Agreement, the Corporation shall grant you, subject to the Corporation's
shareholders approving a new Corporation stock option plan at the Corporation's
2001 Annual Shareholders Meeting, scheduled to be held in April 17, 2001, non-
qualified stock options to purchase fifteen thousand (15,000) shares of the
Corporation's common stock at a price equal to the market value of the shares on
your Employment Date. Provided this Agreement has not been terminated for Cause,
due to your death, disability as defined hereunder, or by you for other than
Good Reason, on the annual anniversary of your Employment Date in the year 2002
and in the year 2003, the Corporation shall each such year, grant you options to
purchase an additional ten thousand (10,000) shares of the Corporation's common
stock at a price equal to the fair market value of the shares of the
Corporation's stock on those respective dates.
For purposes of this subsection 4(c)of this Agreement "fair market
value" of the shares of the Corporation's stock shall mean the last sale price
for a share of the Corporation's
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common stock, as reported by the National Association of Securities Dealers
Automated Quotation System/National Market System, on the day preceding the date
of the granting of the stock options, on which a quotation for the Corporation's
common stock was available, and if no sales are reported that day, on the last
preceding day on which a quotation for the Corporation's common stock was
available.
(d) Expenses. During the term of your employment hereunder, you shall
be entitled to receive prompt reimbursement for all reasonable expenses you
incur in performing your duties hereunder, including all expenses of travel and
living expenses while away from home on business in the service of the
Corporation, the Bank and their subsidiaries, provided that such expenses are
incurred and accounted for in accordance with the policies and procedures
established by the Corporation, the Bank or their subsidiaries at the time the
expenses are incurred.
(e) Pension and Other Plan Benefits. During the term of your
employment hereunder, the Corporation and the Bank shall maintain in full force
and effect, and you shall be entitled to participate in all of its employee
benefit plans and arrangements made generally available to its executives and
key management employees in effect on your Employment Date or plans or
arrangements providing you with at least equivalent benefits thereunder,
including, without limitation, each pension and retirement plan and arrangement,
supplemental pension, life insurance and health and accident plan and
arrangement, medical insurance plan, disability plan, survivor income plan,
vacation plan and bonus plan. The Corporation and the Bank shall not make any
changes in such plans or arrangements, which would adversely affect your rights
or benefits thereunder, unless such changes occur pursuant to a program
applicable to all the Corporation's and the Bank's executives and do not result
in a proportionately greater reduction in your rights or benefits as compared
with any other executive of the Corporation or the Bank. You shall be entitled
to participate in or receive benefits under any employee benefit plan or
arrangement made generally available by the Corporation or the Bank in the
future to its executives and key management employees, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements. Nothing paid to you under any plan or
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arrangement presently in effect or made available in the future shall be deemed
to be in lieu of the salary payable to you pursuant to subsection (a) of this
Section 4. Any payments or benefits payable to you hereunder in respect of any
calendar year during which you are employed by the Corporation or the Bank for
less than the entire such year shall, unless otherwise provided in the
applicable plan or arrangement, be prorated in accordance with the number of
days in such calendar year during which you are so employed.
(f) Vacation. You shall be entitled to the number of vacation days in
each calendar year determined in accordance with the Bank's vacation policy in
effect from time to time. You shall also be entitled to all paid holidays given
by the Bank to its executives.
5. Performance of Additional Duties and Offices.
You hereby agree to serve without compensation other than provided in
this Agreement, if you are elected or appointed a director or officer of any
subsidiary of the Corporation or the Bank, provided that you shall continue to
be indemnified, for serving in all such capacities, on a basis no less favorable
than is provided by the Corporation's and the Bank's By-Laws, as currently in
effect, and that directors and officers liability insurance coverage is provided
to you, on the same basis as other executive officers and directors of the
Corporation, the Bank and their subsidiaries.
6. Place of Performance of Employment.
In connection with your employment by the Corporation and the Bank,
you shall be based at the principal executive offices of the Corporation and the
Bank in Bryn Mawr, Pennsylvania, except for required travel on the Corporation's
and the Bank's business.
7. Confidential Information.
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(a) You hereby agree not to disclose, while in the employ of the
Corporation, the Bank or any subsidiary thereof or at any time thereafter, to
any person who does not have a right to obtain such information, whether or not
employed by the Corporation, the Bank or a subsidiary thereof, or engaged to
render services to the Corporation, the Bank or any subsidiary thereof, any
confidential information obtained by you while in the employ of the Corporation,
the Bank or any subsidiary thereof provided, however, that this provision shall
not preclude you from disclosure required by law or Court order. The term
"confidential information" as used in this Agreement includes, but is not
limited to, records, lists, and knowledge of Corporation's, the Bank's and their
subsidiaries' clients, methods of operation, processes, trade secrets, methods
of determination of prices, prices or fees, financial condition, profits, sales,
net income, and indebtedness, as the same may exist from time to time.
(b) You hereby agree that, upon leaving the Corporation's and the
Bank's employ, you will not take with you, without obtaining the prior written
consent of an officer authorized to give such consent by the Board of Directors
of the Corporation or the Bank, any of the Corporation's, the Bank's or their
subsidiaries' documents or copies thereof which are of a confidential nature.
8. Termination of Employment.
(a) Your employment hereunder may be terminated without any breach of
this Agreement, only under the following circumstances:
(i) Death. Your employment hereunder shall terminate upon your
death.
(ii) Disability. The Corporation or the Bank may terminate your
employment hereunder because of your incapacity because of physical or mental
illness, causing your absence from
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your office and your inability, on a full-time basis, to perform your duties
hereunder for the entire period of ninety (90) consecutive days, and within
thirty (30) days after your receipt of a Notice of Termination,(which may be
sent to you before or after the end of such ninety (90) day period), you shall
not have returned to your office and the performance of your duties hereunder on
a full time basis.
(iii) Cause. The Corporation may terminate your employment
hereunder for "Cause". For purposes of this Agreement, the Corporation shall
have "Cause" to terminate your employment hereunder upon (A) the willful and
continued failure by you to substantially perform your duties hereunder (other
than any such failure resulting from your incapacity due to physical or mental
illness as provided in subsection (a)(ii) of this Section 8), after a written
demand for your substantial performance is delivered to you by the Corporation,
which demand specifically identifies the manner in which the Corporation
believes you have not substantially performed your duties and your failure to
provide the performance demanded within thirty (30) days after your receipt of
such written demand, or (B) the willful engaging by you in misconduct which is
materially injurious to the Corporation, the Bank or any of their subsidiaries,
monetarily or otherwise, or (C) your plea of nolo contendere with respect to or
conviction of a crime involving moral turpitude, dishonesty or a felony, or (D)
your making a general assignment for the benefit of your creditors or your
institution of any proceeding seeking to adjudicate you bankrupt or insolvent
under any laws relating to bankruptcy or insolvency or an involuntary petition
shall be filed against you seeking relief under any law relating to bankruptcy
or insolvency which remains undismissed for a period of sixty (60) days or more,
or (E) your willful violation of the provisions of this Agreement and your
failure to cure such violation within thirty (30) days after receipt of written
notice of such violation, or (F) the receipt of a request by the Corporation,
the Bank or any of their subsidiaries, from any of the governmental agencies
that regulate any of them, that you be removed from your position as a director
of the Corporation or the Bank or the President and Chief Executive Officer of
either of those entities.
For the purposes of this Agreement you shall not be
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deemed to have been terminated for Cause without your receipt of not less than
ten (10) business days written notice from the Corporation setting forth the
reasons for the Corporation's or the Bank's intention to terminate your
employment for Cause, and providing you with (1) an opportunity for you,
together with your counsel, to be heard before the Corporation's Board of
Directors concerning your proposed termination for Cause, and (2) delivery to
you of a Notice of Termination, from the Secretary of the Board of Directors of
the Corporation, stating that in the good faith opinion of the Corporation's
Board of Directors, you were guilty of certain of the conduct set forth above in
clause (A), (B), (C), (D),or (E) of the immediately preceding paragraph, and
specifying the particulars thereof in detail and/or that the Corporation, the
Bank or any of their subsidiaries is in receipt of a request referred to in
clause (F) of the immediately preceding paragraph. The Corporation's Board's
decision with respect to whether Cause for termination of this Agreement shall
exist may be made by the Board in its sole discretion.
Any dispute relating to termination for cause shall be settled by
arbitration in accordance with the Commercial Dispute Resolution Procedures of
the American Arbitration Association and during the pendency of such
arbitration, you shall receive full compensation and benefits for a period of
ninety (90) days from the date of the Notice of Termination from the Secretary
of the Board of the Corporation. In the event that the Corporation and/or the
Bank is the prevailing party in the arbitration, you shall upon demand reimburse
the Corporation and/or the Bank for all sums paid and benefits received,
including any stock options granted to you pursuant to the preceding sentence
with interest at the Bank's prime rate and you further agree that any amount due
may be set-off against any sums owed to you by the Corporation, the Bank or
their subsidiaries including sums owed under any deferred compensation or
benefit plans. Each party shall bear its own attorney's fees and costs of
arbitration, but the prevailing party shall be entitled to reimbursement of its
costs. You agree that the agreement to arbitrate disputes relating to
termination for cause shall not affect or delay the Corporation's or the Bank's
right to seek injunctive relief in court for any threatened or actual breach by
you of Sections 7 and 10 of this Agreement.
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(iv) Voluntary Termination. You may terminate your employment
hereunder at any time upon not less than thirty (30) days prior written notice
to the Corporation, subject to your obligations and covenants under Section 7
and Section 10 of this Agreement.
(b) Any termination of your employment by the Corporation or the Bank
or by you (other than termination pursuant to subsection (a)(i) of this Section
8) or any notice by you to the Corporation of a failure of the Corporation or
the Bank to comply with the provisions of this Agreement shall be communicated
by a Notice of Termination to the other party hereto. 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 under the provision so indicated. A purported
"Notice of Termination" which does not comply with the requirements of the
foregoing sentence shall not be considered a Notice of Termination under this
Agreement.
(c) For the purposes of this Agreement "Date of Termination" shall
mean (A) if your employment is terminated by death, the date of death,(B) if
your employment is terminated pursuant to subsection (a)(ii) of this Section 8,
thirty (30) days after Notice of Termination is sent to you (provided that you
shall not have returned to the performance of your duties on a full-time basis
during such thirty (30) day period) and if requested by the Board of Directors
of the Corporation, you agree to undergo a physical examination by a doctor
selected by the Board which confirms that you are fit to continue full time
normal employment hereunder,(C) if your employment is terminated pursuant to
subsection (a)(iii) of this Section 8, the date specified in the Notice of
Termination, which date cannot precede the date of the Notice of Termination,
(D) if your employment is terminated pursuant to subsection a(iv) of this
Section 8, the date specified in the Notice of Termination, which date must be
at least thirty (30) days after the date of the Notice of Termination, and (E)
if your employment or this Agreement is terminated for any other reason, the
date on which a Notice of Termination is sent to the other party hereto, which
date cannot precede the date of the Notice of Termination; provided that if
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within thirty (30) days after any Notice of Termination is sent hereunder, the
party receiving such Notice of Termination notifies the other party, that a
dispute exists concerning the termination, the Date of Termination shall be the
date on which the dispute is finally resolved, either by mutual written
agreement of the parties, by a binding and final arbitration award or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected).
9. Compensation in the event of Death, During Disability Period or Upon
Other Termination.
(a) If your employment shall be terminated because of your death, the
Bank shall pay to your spouse or your estate your full salary through the last
day of the month of your death at the rate in effect at the time of your death
and the Corporation, the Bank and their subsidiaries shall have no further
obligations to you under this Agreement.
(b) If your employment shall be terminated because you fail to perform
your duties hereunder as a result of incapacity due to physical or mental
illness, which is a disability as defined in subsection 8(a)(ii) hereof, the
Bank shall pay your full salary for a period equal to the applicable
"elimination period" under any group long term disability insurance provided by
the Corporation or the Bank which is currently 180 days, and the Corporation,
the Bank and their subsidiaries shall have no further obligations to you under
this Agreement. In the event that the Corporation or the Bank ceases to provide
group long term disability insurance, the Bank shall pay your full salary
through the last day of the month after your receipt of a Notice of Termination
advising you of the termination of your employment due to your disability and
the Corporation, the Bank and their subsidiaries shall have no further
obligations to you under this Agreement.
(c) If your employment shall be terminated for Cause, the Bank shall
pay you your full salary through the Date of Termination at the rate in effect
at the time Notice of Termination is sent to you and the Corporation, the Bank
and their subsidiaries shall have no further obligations to you under
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this Agreement.
(d) If, in breach of this Agreement, the Corporation or the Bank shall
terminate your employment, other than pursuant to subsections 8(a)(ii) or
8(a)(iii) hereof (it being understood that a purported termination pursuant to
subsection 8(a)(ii) or 8(a)(iii) hereof, which is disputed and finally
determined not to have been proper, shall be a termination by the Corporation or
Bank in breach of this Agreement), then,
(i) the Corporation shall pay your full salary, including
incentive compensation due you, through the Date of Termination at the rate in
effect at the time Date of Termination is received by you; and
(ii) in lieu of any further salary and all other payments
hereunder due to you for the remaining term of this Agreement, the Bank shall
pay you an amount equal to your annual salary in effect as of the Date of
Termination, in substantially equal biweekly installments commencing on or
before the fifteenth (15th) day following the Date of Termination and continuing
for two (2) years or until your sixty fifth birthday, whichever first occurs.
(e) If you shall terminate your employment, the Bank shall pay your
full salary through the Date of Termination at the rate in effect at the time
Notice of Termination and thereafter the Corporation and the Bank and their
subsidiaries shall have no further obligations to you under this Agreement.
(f) You shall not be required to mitigate the amount of any payment
provided for in this Section 9 by seeking other employment or otherwise, except
as provided in subsection 10(c). Notwithstanding anything herein to the
contrary, the Corporation's and Bank's obligations under this Section 9 shall
survive termination of this Agreement.
10. Non-Competition.
(a) Nonsolicitation of Employees. During the time period of two (2)
years after the date of termination of this Agreement, despite the voluntary or
involuntary termination of your employment relationship with the Corporation or
the Bank for
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any reason whatsoever, you shall not, either on your own account or for any
person, firm, partnership, corporation, or other entity (a) solicit, interfere
with, offer employment to, or endeavor to cause any employee of the Corporation,
the Bank or their subsidiaries to leave his or her employment, or (b) induce or
attempt to induce any such employee to breach his or her employment agreement,
nondisclosure and nonsolicitation agreement or other agreement with the
Corporation, the Bank or their subsidiaries.
(b) Nonsolicitation of Clients. During the time period of two (2)
years after the date of termination of this Agreement, despite voluntary or
involuntary termination of your employment relationship with the Corporation or
the Bank for any reason whatsoever, you shall not solicit, induce, or attempt to
induce any person, who has been a client of the Corporation or the Bank or their
subsidiaries within the preceding thirty-six (36) months or is a client of the
Corporation, the Bank or their subsidiaries (a) to cease doing business in whole
or in part with or through the Corporation, the Bank or their subsidiaries or
(b) to do business with any other person, firm, partnership, corporation, or
other entity which performs services similar to or competitive with those
provided by the Corporation, the Bank or their subsidiaries, or agree to accept
as a client or do any business directly or indirectly with a client of the
Corporation, the Bank or their subsidiaries or has been their client within the
preceding thirty-six (36) months.
(c) Noncompetition. During the time period of two (2) years after the
date of termination of this Agreement, despite voluntary or involuntary
termination, except as provided below, of your employment relationship with
Corporation or the Bank, you will not directly or indirectly, own, manage,
operate, control or participate in the ownership, management, operation or
control of, or be connected with as an officer, employee, partner, director,
consultant, or otherwise, or have any financial interest in, or aid or assist
anyone else in the conduct of any enterprise which engages in, or is about to
engage in, or otherwise carries on, any business activity which is in
competition with business conducted by the Corporation, the Bank or their
subsidiaries as of the date of termination, within a one hundred (100) mile
radius of Bryn Mawr, Pennsylvania.
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Notwithstanding the foregoing, you shall be entitled to acquire, as a passive
investment, a proprietary interest not to exceed three percent (3%) of the
equity of any publicly held entity. Further provided, that in the event your
employment relationship with the Corporation or the Bank is terminated by the
Bank or the Corporation for any reason, you may elect to compete as defined in
the first sentence of this subsection 10(c), and if you so elect, then the
Corporation, the Bank and their subsidiaries shall have no obligation to make
any payments or provide any benefits to you including granting any stock options
which are available under this Agreement or any compensation upon termination as
set forth in Section 9 of this Agreement. If you elect to compete, you shall
give immediate written notice to the Corporation. The preceding sentence shall
not limit, impair or affect your covenants and obligations and the rights and
remedies of the Corporation and the Bank under Section 7 and subsections 10(a),
10(b), and 10(d) of this Agreement.
(d) Remedies. In addition to all of the remedies otherwise available
to the Corporation or the Bank at law or in equity, including, but not limited
to, recovery from you of damages and reasonable attorneys' fees incurred in the
enforcement of this Agreement, the Corporation and the Bank shall have the right
to injunctive relief to restrain and enjoin any actual or threatened breach of
the provisions of Section 7 and this Section 10 of this Agreement. All of the
Corporation's or the Bank's remedies for breach of this Agreement shall be
cumulative and the pursuit of one remedy shall not be deemed to exclude any
other remedies. If you violate any of the obligations under Section 10 hereof,
the period applicable to the obligation so violated shall be extended for two
(2) years from the date of the last violation. The parties both recognize and
acknowledge that your services are special and unique, and that, by reason of
this Agreement, you are obtaining access to confidential information and other
material as aforesaid. Therefore, you expressly agree that any breach or
threatened breach of the provisions of Section 7 or this Section 10 hereof shall
entitle the Corporation or the Bank, in addition to any other legal remedies
available to them, to apply to court for an injunction, temporary and/or
permanent, to prevent any violation of this Agreement, and you recognize,
acknowledge and concede that such injunction would, in those circumstances, be
necessary
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to protect the Corporation's and the Bank's interests.
(e) Reasonableness of Restrictions. You have carefully read and
considered the provisions of this Agreement and have had an opportunity to
discuss this Agreement with your counsel and, having done so, agree that the
restrictions set forth in Section 7 and this Section 10 (including, but not
limited to, the time periods of restriction in each of such Sections) and the
remedies in subsection 10(d) hereof are fair and reasonable and are reasonably
required for the protection of the interests of Corporation, the Bank and their
subsidiaries.
(f) Separate Covenants. The parties hereto agree that Section 7 and
this Section 10 shall be deemed to consist of a series of separate covenants.
Notwithstanding anything herein to the contrary, your obligations under Section
7 and Section 10 hereof shall survive termination of this Agreement for any
reason.
11. Successors and Binding Agreement.
(a) The Corporation and the Bank will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Corporation or the Bank ,
by agreement in form and substance satisfactory to the Corporation's and Bank's
Boards of Directors, to expressly assume and agree to honor this Agreement in
the same manner and to the same extent that the Corporation and the Bank would
be required to honor it if no such succession had taken place. As used in this
Section 11 of this Agreement, "Corporation" and ABank@ shall mean the
Corporation and the Bank as hereinbefore defined and any successor to its
business and/or assets as aforesaid which executes and delivers any agreement
provided for in this Section 11 or which otherwise becomes bound by all the
terms and provisions of this Agreement by operation of law.
(b) This Agreement and all of your rights hereunder shall inure to the
benefit of and be enforceable by your personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If you should die
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while any amounts are payable to you hereunder if you had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to your devisee, legatee, or other designee or if
there be no such designee, to your estate.
12. Rights Under Other Plans and Programs.
Anything in this Agreement to the contrary notwithstanding, no
provision of this Agreement is intended, nor shall it be construed, to reduce or
in any way restrict, any benefit to which you may be entitled under any other
agreement, plan or program of the Corporation or the Bank providing benefits to
you or your heirs or estate.
13. Notices.
For the purposes of this Agreement, notices, demands and all other
communications provided for in the Agreement shall be in writing, and shall
include telefax communications and shall be deemed to have been duly given when
delivered or (unless otherwise specified) mailed by United States registered
mail, return receipt requested postage prepaid, addressed as follows:
If to you: Xx. Xxxxxxxxx X. Xxxxxx XX
000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
If to the Corporation
and the Bank: Bryn Mawr Bank Corporation
000 Xxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx,
Corporate Secretary
Xxxxxxxxx X. Xxxxxx XX
Page 17
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
14. Representations and Warranties.
The Corporation and Bank represent and warrant that the execution of
this Agreement by the Corporation and Bank has been duly authorized by
resolution of their respective Boards of Directors and that the Corporation and
the Bank have the authority to execute and deliver this Agreement and that the
Agreement does not conflict with or violate any other agreement or contract by
which the Corporation or the Bank is bound. You represent and warrant to the
Corporation and the Bank that you are authorized to execute and deliver this
Agreement and that this Agreement does not conflict with or violate the
provisions of the Agreement to which the Corporation is a party or by which the
Corporation and Bank are bound.
15. Choice of Law and Venue.
It is understood and agreed that the construction and interpretation of
this Agreement shall at all times and in all respects be governed by the laws of
the Commonwealth of Pennsylvania, without giving effect to the conflict of laws
provisions thereof. Venue of any action brought to enforce or relating to this
Agreement shall be brought exclusively in the Court of Common Pleas of
Xxxxxxxxxx County or the United States District Court for the Eastern District
of Pennsylvania.
16. Enforcement.
The prevailing party in any suit or other legal action in connection
with the enforcement of this Agreement shall be entitled, in addition to any
other remedy available at law or in equity, to reimbursement of its reasonable
costs and expenses (including reasonable attorneys' fees).
Xxxxxxxxx X. Xxxxxx XX
Page 18
17. Miscellaneous.
No provisions of this Agreement may be modified, waived or discharged
unless such modification, waiver or discharge is agreed to in writing signed by
you and the Corporation's or the Bank's Boards of Directors or such other
officer as may be specifically designated by such Boards. No waiver by either
party hereto at any time of any breach by the 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 any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. This Agreement embodies the entire understanding
between the parties hereto and supersedes any other prior or contemporaneous,
oral or written, representation or agreement by the parties hereto, with respect
to the matters which are the subject of this Agreement, and no change,
alteration or modification hereof may be made except in writing signed by the
parties hereto.
18. Validity.
The invalidity or unenforceability of any provision or provisions 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.
19. Pronouns.
All pronouns contained herein and any variations thereof shall be
deemed to refer to the masculine, feminine or neuter, singular or plural, as the
identity of the parties hereto may require.
20. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but
Xxxxxxxxx X. Xxxxxx XX
Page 19
all of which together will constitute one and the same Agreement.
21. Captions.
The section and subsection captions in this Agreement are for
convenience of reference only and do not define, limit or describe the scope or
intent of this Agreement or any part hereof and shall not be considered in any
construction hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement this
10/th/ day of January, 2001.
BRYN MAWR BANK CORPORATION
Attest: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X Xxxxxxx
-------------------- ------------------------
Secretary Name: Xxxxxx X. Xxxxxxx
Title: Chairman
Witness: /s/ Xxxxxxx X. Xxxx /s/ Xxxxxxxxx X. Xxxxxx
-------------------- ------------------------
Xxxxxxxxx X. Xxxxxx XX
Exhibit A to the Employment Agreement
by and between
Bryn Mawr Bank Corporation
and
Xx. Xxxxxxxxx X. Xxxxxx XX
Complete list of Xx. Xxxxxxxxx X. Xxxxxx XX directorships,
public service commitments and outside business interests
Director, Pennsylvania Partnership for Economic Education
Legislative Committee, Pennsylvania Association of Community Bankers
Member of Vestry, St. Mary's Episcopal Church (Ardmore)
Member, Radnor Interscholastic Athletic Advisor Council
Outside Business Interests - None
Date: March
-------------
Xx. Xxxxxxxxx X. Xxxxxx, XX
000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Amendment of Employment Agreement (the "Agreement")
---------------------------------------------------
Dear Xxx:
This letter constitutes an amendment (the "Amendment") to subsection 4(c)
of the captioned Agreement. The Agreement is amended by deleting the first
paragraph of subsection 4(c) and inserting in lieu thereof, the following:
"(c) Stock Options. On the day of the Corporation's 2001 Annual
Shareholders Meeting, scheduled to be held on April 17, 2001, the
Corporation shall grant you, subject to the Corporation's shareholders
approving a new Corporation stock option plan at the 2001 Annual
Shareholders Meeting, non-qualified stock options to purchase fifteen
thousand (15,000) shares of the Corporation's common stock at a price
equal to the fair market value of the stock on that date. Provided
this Agreement has not been terminated for Cause, due to your death,
or disability as defined hereunder, or by you for other than Good
Reason, on the day of the Corporation's Annual Shareholders Meetings
in the year 2002 and in the year 2003, the Corporation shall each such
year, grant you options to purchase an additional ten thousand
(10,000) shares of the Corporation's common stock at a price equal to
the fair market value of the shares of the Corporation's stock on
those respective dates."
Otherwise the Agreement remains unaltered.
Intending to be legally bound, for good and sufficient consideration, the
receipt of which is hereby acknowledged and as an inducement for making this
Amendment, the parties hereto hereby represent and warrant, as applicable, that
(i) all representations and warranties set forth in the Agreement are true and
correct as of the date hereof; and (ii) no condition or event exists or has
occurred which would constitute a default under the Agreement, or upon the
giving of notice or the passage of time, or both would constitute a default.
The undersigned hereby acknowledges and confirms that the Agreement, as
hereby amended, is valid, binding and in full force and effect as of the date
hereof and fully enforceable against the parties hereto.
All capitalized terms used herein, which are not defined herein or
otherwise conventionally capitalized, shall have the meanings ascribed to them
in the Agreement.
By signing below, you confirm and approve the terms and conditions of the
Agreement, as amended and acknowledge receipt of a copy of this Amendment.
If you have any questions or desire additional information, kindly advise
me.
Sincerely yours,
Xxxxxx X. Xxxxxxx
Chairman
RLS/bd
Accepted and Agreed to
By: /s/ Xxxxxxxxx X. Xxxxxx, XX
_________________________
Xxxxxxxxx X. Xxxxxx, XX
Date January 25, 2001
________________________
THE BRYN MAWR TRUST COMPANY
---------------------------
EXECUTIVE CHANGE-OF-CONTROL
---------------------------
SEVERANCE AGREEMENT
-------------------
Agreement made as of January 22, 2001 between The Bryn Mawr Trust Company,
a Pennsylvania financial institution, subject to the provisions of the
Pennsylvania Banking Code of 1965, as amended (the "Company"), and Xxxxxxxxx X.
Xxxxxx, XX (the "Employee").
WHEREAS, the Employee is presently employed by the Company as its President
and CEO;
WHEREAS, the Company considers it essential to xxxxxx the employment of
well qualified key management personnel, and, in this regard, the board of
directors of the Company recognizes that, as is the case with many financial
institutions, the possibility of a change of control of the Company's publicly
held parent company, Bryn Mawr Bank Corporation, ("BMBC") may exist and that
such possibility, and the uncertainty and questions which it may raise among the
Company's management, may result in the departure or distraction of key
management personnel to the detriment of the Company and ultimately to the
detriment of BMBC and its shareholders;
1
WHEREAS, the Boards of directors of the Company and BMBC have determined
that appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of key members of the Company's management to their
assigned duties, without distraction in the face of potentially disturbing
circumstances arising from the possibility of a change of control of the BMBC,
although no such change is now contemplated; and
WHEREAS, in order to induce the Employee, a key member of the Company's
management, to remain in the employ of the Company, the Company agrees that the
Employee shall receive the compensation and benefits set forth in this Agreement
in the event his/her employment with the Company is terminated subsequent to a
"Change of Control" (as defined in Section 1 hereof) of BMBC, as a cushion
against the financial and career impact on the Employee of any such Change of
Control;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter set forth and intending to be legally bound hereby,
the parties hereto agree as follows:
1. Definitions. For all purposes of this Agreement, the following terms
-----------
shall have the meanings specified in this Section, unless the context clearly
otherwise requires:
2
(a) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations issued
under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) "AIP" shall mean any Annual Incentive Plan of the Company, as in
effect immediately prior to a change of Control, or predecessor or prior plan,
including BMBC's Thrift and Savings Plan and the Company's annual bonus plan.
(c) "Base Salary" shall mean the total cash remuneration earned by
the Employee on an annualized basis in all capacities with the Company and its
Subsidiaries, including, without limitation, any amounts the payment of which
has been deferred by the Employee, excluding only payments earned by or
allocated to the Employee under the AIP.
(d) A Person shall be deemed the "Beneficial Owner" of any
securities:
(i) that such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire
(whether such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon
3
the exercise of conversion rights, exchange rights, rights,
warrants or options, or otherwise; provided, however, that a
-------- -------
Person shall not be deemed the "Beneficial Owner" of securities
tendered pursuant to a tender or exchange offer made by such
Person or any of such Person's Affiliates or Associates until
such tendered securities are accepted for payment, purchase or
exchange;
(ii) that such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to vote or
dispose of or has "beneficial ownership" of (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations
issued under the Exchange Act), including without limitation
pursuant to any agreement, arrangement or understanding, whether
or not in writing; provided, however, that a Person shall not be
-------- -------
deemed the "Beneficial Owner" of any security under this
subsection (ii) as a result of an oral or written agreement,
arrangement or understanding to vote such security if such
agreement, arrangement or understanding (A) arises solely from a
revocable proxy given in response to a public proxy or consent
solicitation made pursuant
4
to, and in accordance with, the applicable provisions of the
General Rules and Regulations issued under the Exchange Act, and
(B) is not then reportable by such Person on Schedule 13D under
the Exchange Act (or any comparable or successor report); or
(iii) that are beneficially owned, directly or indirectly, by any
other Person (or any Affiliate or Associate thereof) with which
such Person (or any of such Person's Affiliates or Associates)
has any agreement, arrangement or understanding (whether or not
in writing) for the purpose of acquiring, holding, voting (except
pursuant to a revocable proxy as described in the proviso to
subsection (ii) above) or disposing of any voting securities of
BMBC; provided, however, that nothing in this Section 1(d) shall
-------- -------
cause a Person engaged in business as an underwriter of
securities to be the "Beneficial Owner" of any securities
acquired through such Person's participation in good faith in a
firm commitment underwriting until the expiration of forty (40)
days after the date of such acquisition.
(e) "Board" shall mean the board of directors of the
5
Company or BMBC as the context of this Agreement indicates.
(f) "Change of Control" shall be deemed to have taken place if (i)
any Person BMBC, any Subsidiary of BMBC, any employee benefit plan of BMBC or
the Company, any Person or entity organized, appointed or established by BMBC or
any Subsidiary of BMBC for or pursuant to the terms of any such employee benefit
plan) together with all Affiliates and Associates of such Person, shall become
the Beneficial Owner in the aggregate of 25% or more of the common stock of BMBC
then outstanding, or (ii) during any twenty-four month period, individuals who
at the beginning of such period constituted the Board of BMBC or the Company
cease, for any reason, to constitute a majority thereof, unless the election, or
the nomination for election by BMBC's or the Company's shareholders, as the case
may be, of each director who was not a director at the beginning of such period
was approved by a vote of at least two-thirds of the directors in office at the
time of such election or nomination, who were directors at the beginning of such
period.
(g) "Common Stock" shall mean the outstanding common stock of BMBC.
(h) "Pension Plan" shall mean the BMBC non-contributory pension plan
and the amended pension plan which covers eligible employees of the Company.
6
(i) "Person" shall mean any individual, firm, corporation,
partnership or other entity.
(j) "Stock Plan" shall mean (i) BMBC's 1986 Stock Option and Stock
Appreciation Rights Plan, as amended and restated; (ii) BMBC's 1998 Stock Option
Plan; and (iii) any other stock option plan, stock option and stock apprecation
rights plan, stock bonus plan, stock grant plan, or similar benefit plan
established by BMBC and which exists for the benefit of the Employee at the time
of a Change in Control.
(k) "Subsidiary" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations issued under the Exchange Act.
(l) "Termination Date" shall mean the date of receipt of the Notice
of Termination described in Section 2 hereof or any later date specified
therein, as the case may be.
(m) "Termination of Employment" shall mean the termination of the
Employee's actual employment relationship with the Company.
(n) "Termination upon a Change of Control" shall mean a Termination
of Employment upon or within two (2) years after a Change of Control either:
7
(i) initiated by the Company for any reason other than (x) the
Employee's continuous illness, injury or incapacity for a period
of six consecutive months or (y) for "cause," which shall mean
misappropriation of funds, habitual insobriety, substance abuse,
conviction of a crime involving moral turpitude, or gross
negligence in the performance of his/her duties, which gross
negligence has had a material adverse effect on the business,
operations, assets, properties or financial condition of the
Company and its Subsidiaries or BMBC and its Subsidiaries taken
as a whole; or
(ii) initiated by the Employee following one or more of the
following occurrences:
(A) a significant reduction by the Company or BMBC (if the
Employee is an officer of BMBC) of the authority, duties or
responsibilities of the Employee immediately prior to the
Change of Control;
(B) any removal of the Employee from his/her officer
position with BMBC, the Company and its Subsidiaries held by
him/her immediately
8
prior to the Change of Control, except in connection with
promotions to higher office;
(C) a reduction by the Company in the Employee's Base Salary
as in effect immediately prior to the Change of Control;
(D) revocation or any modification of the AIP or Stock Plan,
or any action taken pursuant to the terms of either plan,
which materially (x) reduces the opportunity to receive
compensation under any or both of such plans of equivalent
amounts received by the Employee during the two (2) fiscal
years immediately preceding the Change of Control, subject
to the right of the Boards of Directors of BMBC or the
Company, as appropriate, to establish in a manner consistent
with past practice, prior to the Change of Control,
reasonable goals under the AIP or Stock Plan, (y) reduces
the compensation payable to the Employee under either or
both of such plans but which does not effect comparable
reductions in the compensation payable to the other
participants in such plans, or (z) increases
9
the compensation payable to other participants in either or
both of such plans but which does not effect corresponding
increases in the amount of compensation payable to the
Employee;
(E) termination or modification of BMBC's Pension Plan or
Supplemental Employee Retirement Plan, in each case as such
plans are in effect immediately prior to the Change of
Control, which materially reduces (x) the retirement
benefits provided by such plans, or (y) the funding thereof
provided by the Pension Plan or by any trust established by
BMBC to fund benefits provided by the Supplemental Employee
Retirement Plan;
(F) a transfer of the Employee, without his/her express
written consent, to a location which is outside the Greater
Philadelphia area (or the general area in which his/her
principal place of business immediately preceding the Change
of Control may be located at such time, if other than Bryn
Mawr, Pennsylvania), or which is otherwise an unreasonable
commuting distance
10
from the Employee's principal residence at the date of the
Change of Control;
(G) the Employee being required to undertake business travel
to an extent substantially greater than the Employee's
business travel obligations immediately prior to the Change
of Control; or
(H) any failure of the Company to comply with and satisfy
Section 13 of this Agreement.
2. Notice of Termination. Any Termination upon a Change of Control shall
---------------------
be communicated by a Notice of Termination to the other party hereto given in
accordance with Section 14 hereof. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) briefly summarizes the facts and
circumstances deemed to provide a basis for termination of the Employee's
employment under the provision so indicated, and (iii) if the termination date
is other than the date of receipt of such notice, specifies the termination date
(which date shall not be more than 15 days after the giving of such notice).
11
3. Severance Compensation upon Termination. Subject to the provisions of
---------------------------------------
Section 10 hereof, in the event of the Employee's Termination upon a Change of
Control, the Company shall pay to the Employee, within fifteen (15) days after
the Termination Date (or as soon as possible thereafter in the event that the
procedures set forth in paragraph (b) of Section 11 hereof cannot be completed
within fifteen (15) days) an amount in cash equal to three (3) times the sum of
the Employee's Base Salary in effect either immediately prior to the Termination
of Employment or immediately prior to the Change of Control, whichever is
higher.
4. Other Payments. Subject to the provisions of Section 10 hereof, in the
--------------
event of the Employee's Termination upon a Change of Control, the Company shall:
(a) pay to the Employee within fifteen (15) days after the Termination
date:
(i) unless the Employee has exercised such options, an amount
equal to the excess, if any, of the aggregate fair market value of
the shares of BMBC's Common Stock subject to all stock options
outstanding and unexercised as of the Termination Date, whether
vested or unvested, granted to the Employee under the Stock Plan,
over the aggregate
12
exercise price of all such stock options. For purposes of this
paragraph, fair market value shall mean the highest of (x) the
closing price of BMBC's Common Stock on the last business day the
Common Stock was traded immediately preceding the Termination Date,
if such Common Stock is publicly traded at such date, (y) if such
Common Stock is not publicly traded at the Termination date, the
value determined by an independent appraiser, such appraiser to be
selected by the Employee and to be reasonably satisfactory to the
Company (the fees and expenses of such appraiser to be borne by the
Company), or (z) the highest per share price of BMBC's Common Stock
paid (in connection with the Change of Control or at any time
thereafter) by the Person or group whose acquisition of shares of
Common Stock of BMBC has given rise to a Change of Control;
(ii) to the extent not theretofore paid, the Employee's Base Salary
through the Termination Date and a further amount equal to the
Employee's salary in lieu of his/her unused vacation pay, if any,
both calculated at the salary rate in effect on the Termination
Date, or, if higher, at the highest rate in effect at any time
within the
13
90-day period preceding the Termination Date;
(iii) to the extent not theretofore paid, an amount equal to all
awards earned by the Employee under the AIP in respect of
completed plan periods prior to the Termination Date (including
all amounts the payment of which was previously deferred under
such plans and interest thereon from the date of each such
deferral to the date of payment at the maximum rate provided by
such plans or any gain or increase in value obtained on
investments in such plans), in each case without regard to any
provisions set forth in such plans to the contrary. In the event
that the Company's financial statements for any fiscal years,
included in such plan periods, have not yet been completed at the
Termination Date, the Company's shall pay to the Employee the
amounts due hereunder as soon as possible thereafter;
(iv) payment in respect of the AIP for the uncompleted fiscal
year during which Termination of Employment occurs determined by
multiplying the amount determined in Section 3(a)(ii) by a
fraction, the numerator of which shall be the number of days
between the Termination Date and
14
the last day of the last full fiscal year prior to the
Termination Date and the denominator of which shall be Three
Hundred Sixty Five (365); and
(b) to the extent permitted by applicable law, continue or cause to
be continued until thirty-six (36) whole months after the Termination Date, on
the cost-sharing basis in effect immediately prior to the Change of Control,
medical, dental, life and disability insurance benefits substantially equivalent
in all material respects to those furnished by the Company to the Employee
immediately prior to the Change of Control; provided, however, that the
-------- -------
obligation of the Company to provide such benefits shall cease at such time as
the Employee is employed on a full-time basis by a Person not owned or
controlled by the Employee that provides the Employee, on substantially the same
cost-sharing basis between the Company and the Employee in effect immediately
prior to the Change of Control, with medical, dental, life and disability
insurance benefits substantially equivalent in all material respects to those
furnished by the Company and its Subsidiaries to the Employee immediately prior
to the Change of Control;
(c) for both vesting and benefit calculation purposes, credit the
Employee with three (3) additional "year of credited service" (as defined in
BMBC's Pension Plan) under BMBC's Pension Plan and Supplemental Employee
Retirement Plan in addition to the years of credited service that would have
otherwise been
15
calculated by reference solely to the Termination Date, it being understood that
benefits in respect of the three (3) additional year of credited service shall
be paid to the Employee under the Supplemental Employee Retirement Plan, and
that BMBC shall, to the extent necessary to provide the Employee the additional
benefits intended hereby, amend the Supplemental Employee Retirement Plan or
create such supplemental retirement plans as may be necessary; and
(d) pay for reasonable career counseling services provided by
Manchester Partners International or any such equivalent agency satisfactory to
both the Company and the Employee.
5. Establishment of Trust. Immediately upon a Change of Control as herein
----------------------
defined, the Company shall establish an irrevocable trust fund pursuant to a
trust agreement to hold assets to satisfy its obligations hereunder. Funding of
such trust fund shall be subject to the Company's discretion, as to be set forth
in the agreement pursuant to which the trust fund will be established.
6. Enforcement.
-----------
(a) In the event that the Company shall fail or refuse to make
payment of any amounts due the Employee under Sections 3
16
and 4 hereof within the respective time periods provided therein, the Company
shall pay to the Employee, in addition to the payment of any other sums provided
in this Agreement, interest, compounded daily, on any amount remaining unpaid
from the date payment is required under Section 3, 4 or 5, as appropriate, until
paid to the Employee, at the prime rate published daily in the Wall Street
Journal, each change in such rate to take effect on the effective date of the
change in such prime rate.
(b) It is the intent of the parties hereto that the Employee not be
required to incur any expenses associated with the enforcement of his/her rights
under this Agreement by arbitration, litigation or other legal action because
the cost and expense thereof would substantially detract from the benefits
intended to be extended to the Employee hereunder. Accordingly, the Company
shall pay the Employee on demand the amount necessary to reimburse the Employee
in full for all expenses (including all attorneys' fees and legal expenses)
incurred by the Employee in enforcing any of the obligations of the Company
under this Agreement.
7. No Mitigation. The Employee shall not be required to mitigate the
-------------
amount of any payment or benefit provided for in this Agreement by seeking other
employment or otherwise.
8. Nonexclusivity of Rights. Nothing in this Agreement
------------------------
17
shall prevent or limit the Employee's continuing or future participation in or
rights under any benefit, bonus, incentive or other plan or program provided by
BMBC, the Company or any of its Subsidiaries or Affiliates and for which the
Employee may qualify; provided, however, that if the Employee becomes entitled
-------- -------
to and receives all of the payments provided for in this Agreement, the Employee
agrees to waive his/her right to receive payments under any severance plan or
program applicable to all employees of the Company.
9. No Set-Off. The Company's obligation to make the payments provided for
----------
in this Agreement and otherwise to perform its obligations hereunder shall not
be affected by any circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the Company may have
against the Employee or others and the Company hereby agrees not to exercise any
such rights with respect to payment due the Employee pursuant to this Agreement.
10. Certain Reduction of Payments.
-----------------------------
(a) Anything in this Agreement to the contrary notwithstanding, in
the event that it shall be determined as set forth herein that any payment or
distribution by the Company to or for the benefit of the Employee, whether paid
or payable or distributed or distributable pursuant to the terms of this
18
Agreement or otherwise (a "Payment"), would constitute an "excess parachute
payment" within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), and that it would be economically advantageous to
the Employee to reduce the Payment to avoid or reduce the taxation of excess
parachute payments under Section 4999 of the Code, the aggregate present value
of amounts payable or distributable to or for the benefit of the Employee
pursuant to this Agreement (such payments or distributions pursuant to this
Agreement are hereinafter referred to as "Agreement Payments") shall be reduced
(but not below zero) to the Reduced Amount. The "Reduced Amount" shall be an
amount expressed in present value which maximizes the aggregate present value of
Agreement Payments without causing any Payment to be subject to the taxation
under Section 4999 of the Code. For purposes of this Section 10, present value
shall be determined in accordance with Section 280G(d)(4) of the Code.
(b) All determinations to be made under this Section 10 shall be made,
in writing, by PricewaterhouseCoopers LLP, or the Company's independent
certified public accountant immediately prior to the Change of Control, if other
than PricewaterhouseCoopers LLP, (the "Accounting Firm"), which firm shall
provide its determinations and any supporting calculations in writing to both
the Company and the Employee within ten (10) days of the Termination Date. Any
such determination by the Accounting Firm shall be binding upon the Company and
the
19
Employee. The Employee shall in his/her sole discretion determine which and
how much of the Agreement Payments shall be eliminated or reduced consistent
with the requirements of this Section 10. Within five (5) days after the
Employee's determination, the Company shall pay (or cause to be paid) or
distribute (or cause to be distributed) to or for the benefit of the Employee
such amounts as are then due to the Employee under this Agreement.
(c) As a result of the uncertainty in the application of Section 280G
of the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Agreement Payments, as the case may be, will have
been made by the Company which should not have been made ("Overpayment") or that
additional Agreement Payments which have not been made by the Company could have
been made ("Underpayment"), in each case, consistent with the calculations
required to be made hereunder. Within two (2) years after the Termination of
Employment, the Accounting Firm shall review the determination made by it
pursuant to the preceding paragraph. In the event that the Accounting Firm
determines that an Overpayment has been made, any such Overpayment shall be
treated for all purposes as a loan to the Employee which the Employee shall
repay to the Company together with interest at the applicable Federal rate
provided for in Section 7872(f)(2) of the Code (the "Federal Rate"); provided,
--------
however, that no amount shall be payable by the
-------
20
Employee to the Company if and to the extent such payment would not reduce the
amount which is subject to taxation under Section 4999 of the Code. In the event
that the Accounting Firm determines that an Underpayment has occurred, any such
Underpayment shall be promptly paid by the Company to or for the benefit of the
Employee together with interest thereon at the Federal Rate.
(d) All of the fees and expenses of the Accounting Firm in
performing the determinations referred to in paragraphs (b) and (c) above shall
be borne solely by the Company. The Company agrees to indemnify and hold
harmless the Accounting Firm of and from any and all claims, damages and
expenses of any nature resulting from or relating to its determinations pursuant
to paragraphs (b) and (c) above, except for claims, damages or expenses
resulting from the gross negligence or willful misconduct of the Accounting
Firm.
11. Settlement of All Disputes.
--------------------------
(a) The Employee and the Company acknowledge that the
Compensation Committee of the Company's Board intends to review and approve a
schedule indicating a method of calculating certain payments to be made to the
Employee hereunder in the event of a Termination upon a Change of Control. In
the event that the compensation plans referred to herein change prior to a
Change of
21
Control, the Compensation Committee of the Company's Board may, prior to such
Change of Control, revise the schedule to reflect such changes. The method of
calculation set forth on such schedule, as so revised prior to a Change of
Control, shall be followed by the parties hereto unless manifestly unfair to the
Employee.
(b) In the event of any dispute, controversy or claim arising out of
or relating to any provision of this Agreement or the Employee's Termination
upon a Change of Control, the Company shall appoint as the sole and exclusive
arbiter of such dispute, controversy or claim, a committee composed of two
persons who were members of the Company's Board at any time within five (5)
years prior to the Change of Control (which persons may, but need not be,
directors of the Company at the time of such dispute, controversy or claim);
provided, however, that no person shall be eligible to serve thereon who (i) is
-------- -------
at the Termination Date, or shall have been at any time within one year prior
thereto, an executive officer of the Company, or (ii) shall be or have been at
any time related in any manner to or otherwise affiliated with, or was first
nominated by, the corporation, Person or group whose acquisition of shares of
Common Stock of BMBC has given rise to a Change of Control. The decision of such
committee and the award of any monetary judgment or other relief by such
committee shall be final and binding upon the Employee and the Company, and
shall not be subject to appeal. Judgment may be
22
entered upon the decision and award of such committee by the Employee or the
Company in any court of competent jurisdiction. The Company shall pay the
persons selected pursuant to this subsection a reasonable fee for their
services, and shall reimburse such persons for their expenses incurred in this
capacity. In addition, the Company shall, to the maximum extent permitted by
law, indemnify and hold harmless such persons of and from any and all claims,
damages or expenses of any nature whatsoever relating to or arising from their
activities in this capacity.
(c) In the event that the Company shall be unable to appoint the
committee referred to in paragraph (b) above after good faith efforts to do so,
or in the event that such committee cannot reach a unanimous agreement, any
remaining dispute, controversy or claim arising out of or relating to any
provision of this Agreement or the Employee's Termination upon a Change of
Control shall be settled by arbitration in the City of Philadelphia, in
accordance with the commercial arbitration rules then in effect of the American
Arbitration Association, before a panel of three (3) arbitrators, two (2) of
whom shall be selected by the Company and the Employee, respectively, and the
third of whom shall be selected by the other two arbitrators. Each arbitrator
selected as provided herein is required to be or have been a director or an
executive officer of a corporation whose shares of common stock were listed
during at least one year of
23
such service on the New York Stock Exchange or the American Stock Exchange or
quoted on the National Association of Securities Dealers Automated Quotations
System. Any award entered by the arbitrators shall be entered thereon by any
party in accordance with applicable law in any court of competent jurisdiction.
This arbitration provision shall be specifically enforceable. The fees of the
American Arbitration Association and the arbitrators and any expenses relating
to the conduct of the arbitration shall be paid by the Company.
(d) The party or parties challenging the right of the Employee to the
benefits of this Agreement shall in all circumstances have the burden of proof.
12. Term of Agreement. The term of this Agreement shall be for three (3)
-----------------
years from the date hereof and shall automatically be extended for additional
one-year periods unless written notice of termination of this Agreement is
provided to the Employee by the Company at least one year prior to the
expiration of the initial three (3) year term or any one-year renewal period;
provided, however, that (i) after a Change of Control during the term of this
-------- -------
Agreement, this Agreement shall remain in effect for a period of two (2) years
and until all of the obligations of the parties hereunder are satisfied or have
expired, and (ii) this Agreement shall terminate if, prior to the Change of
Control, the employment of the Employee with the Company or any
24
of its Subsidiaries shall terminate for any reason whatsoever.
13. Successor Company. The Company shall require any Person who acquires
-----------------
the majority of the Common Stock of the Company or BMBC or any successor or
successors thereof (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company or BMBC, by agreement, in form and substance satisfactory
to the Employee, to acknowledge expressly, in writing, that this Agreement is
binding upon and enforceable against the Company or BMBC or any successor or
successors thereto in accordance with the terms hereof and the instrument of
transfer, and to become jointly and severally obligated with the Company to
perform this Agreement, in the same manner and to the same extent that the
Company would be required to perform this Agreement if no such acquisition
purchaser, merger consolidation, succession or successions had taken place.
Failure of the Company to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement. As used in this
Agreement, the Company shall mean the Company as hereinbefore defined and any
such successor or successors to its business and/or assets, jointly and
severally.
14. Notice. All notices and other communications required or permitted
------
hereunder or necessary or convenient in connection herewith shall be in writing
and shall be delivered personally or
25
mailed by registered or certified mail, return receipt requested, or by
overnight express courier service, as follows:
If to the Company, to:
Corporate Secretary
The Bryn Mawr Trust Company
000 Xxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
If to the Employee, to:
Xxxxxxxxx X. Xxxxxx, XX
000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
or to such other names or addresses as the Company or the Employee, as the case
may be, shall designate by notice to the other party hereto in the manner
specified in this Section. Any such notice shall be deemed delivered and
effective when received in the case of personal delivery, five (5) days after
deposit, postage prepaid, with the U.S. Postal Service in the case of registered
or certified mail, or on the next business day in the case of overnight express
courier service.
15. Governing Law. This Agreement shall be governed by and interpreted
-------------
under the laws of the Commonwealth of Pennsylvania without giving effect to any
conflict of laws provisions.
16. Contents of Agreement, Amendment and Assignment.
-----------------------------------------------
(a) This Agreement supersedes all prior agreements and
26
sets forth the entire understanding between the parties hereto with respect to
the subject matter hereof and cannot be changed, modified, extended or
terminated except upon written amendment executed by the Employee and approved
by the Board and executed on the Company's behalf by a duly authorized officer.
The provisions of this Agreement may provide for payments to the Employee under
certain compensation or bonus plans (including without limitation the AIP and
Stock Plan) under circumstances where such plans would not provide for payment
thereof. It is the specific intention of the parties that the provisions of this
Agreement shall supersede any provisions to the contrary in such plans, and such
plans shall be deemed to have been amended to correspond with this Agreement
without further action by the Company or the Boards of BMBC or the Company.
(b) Nothing in this Agreement shall be construed as giving the
Employee any right to be retained in the employ of the Company.
(c) The Employee acknowledges that from time to time, the Company may
establish, maintain and distribute employee manuals or handbooks or personnel
policy manuals, and officers or other representatives of the Company may make
written or oral statements relating to personnel policies and procedures. Such
manuals, handbooks and statements are intended only for general guidance. No
policies, procedures or statements of any nature by
27
or on behalf of the Company (whether written or oral, and whether or not
contained in any employee manual or handbook or personnel policy manual), and no
acts or practices of any nature, shall be construed to modify this Agreement.
(d) All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
heirs, representatives, successors and assigns of the parties hereto, except
that the duties and responsibilities of the Employee and the Company hereunder
shall not be assignable in whole or in part by the Company.
17. Severability. If any provision of this Agreement or application
------------
thereof to anyone or under any circumstances shall be determined to be invalid
or unenforceable, such invalidity or unenforceability shall not affect any other
provisions or applications of this Agreement which can be given effect without
the invalid or unenforceable provision or application.
18. Remedies Cumulative; No Waiver. No right conferred upon the Employee
------------------------------
by this Agreement is intended to be exclusive of any other right or remedy, and
each and every such right or remedy shall be cumulative and shall be in addition
to any other right or remedy given hereunder or now or hereafter existing at law
or in equity. No delay or omission by the Employee in exercising any right,
remedy or power hereunder or existing at
28
law or in equity shall be construed as a waiver thereof, including without
limitation any delay by the Employee in delivering a Notice of Termination
pursuant to Section 2 hereof after an event has occurred which would, if the
Employee had resigned, have constituted a Termination upon a Change of Control
pursuant to Section 1(n)(ii) of this Agreement.
19. Miscellaneous. All section headings in this Agreement are for
-------------
convenience only. This Agreement may be executed in several counterparts, each
of which is an original. It shall not be necessary in making proof of this
Agreement or any counterpart hereof to produce or account for any of the other
counterparts.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first above written.
Attest: THE BRYN MAWR TRUST COMPANY
[Seal]
/s/ Xxxxxx X. Xxxxxx By /s/ Xxxxxx X. Xxxxxxx
------------------------------- ------------------------------
Secretary Xxxxxx X. Xxxxxxx
Chairman
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxxxxx X. Xxxxxx, XX
------------------------------- --------------------------------
Witness Xxxxxxxxx X. Xxxxxx, XX
29
