EXHIBIT 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT, (this "Agreement"), is made effective
as of July 1, 2003, between COLUMBIA COUNTY FARMERS NATIONAL BANK, a nationally
chartered banking institution, (the "Bank"), and XXXXX XXXXXX, an adult
individual (the "Executive").
WHEREAS, the Bank desires to employ the Executive as Chief Operating
Officer, effective July 1, 2003, under the terms and conditions set forth
herein; and,
WHEREAS, the Executive desires to serve the Bank in an executive capacity
under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and intending to be legally bound hereby, the parties agree as
follows:
1. EMPLOYMENT AND EMPLOYMENT TERM. The Bank hereby shall employ the
Executive and the Executive hereby accepts employment with the Bank for a term
of one and one-half years (1-1/2) years beginning July 1, 2003, and ending
December 31, 2004, unless sooner terminated as hereinafter provided. On December
31, 2004, and on the last day of December each year thereafter, while the
Executive is employed by the Bank, the term of the Executive's employment shall
be automatically extended one (1) additional year, unless Executive or the Bank
give written notice to the other on or before October 1st of the then current
term of intention not to renew. The term of Executive's employment can be
terminated pursuant to the provisions of paragraph 10 herein; provided, however,
the parties agree that in no event shall the term of Executive's employment
hereunder extend beyond December 31(st) in the calendar year
22
in which Executive's 65th birthday occurs.
2. POSITION, DUTIES, AND PLACE OF EMPLOYMENT. The Executive shall serve as
the Chief Operating Officer of the Bank, reporting only to Chief Executive
Officer of the Bank and to the Board of Directors of the Bank, and shall have
the responsibilities of the Chief Operating Officer of the Bank as set forth in
the job description thereof, as the same may be modified from time to time by
the Board of Directors. The Executive shall have such other powers and duties as
may from time to time be prescribed by the Board of Directors of the Bank,
provided that such duties are consistent with the Executive's position as the
Chief Operating Officer of the Bank. The Executive's primary office shall be
located at such place as the Board of Directors shall determine.
3. ENGAGEMENT IN OTHER EMPLOYMENT. The Executive shall devote all his
working time, ability and attention to the business of the Bank during the term
of this Agreement. The Executive shall, during the term of this Agreement,
notify the Board of Directors of the Bank in writing and receive written
approval from the Bank before the Executive engages in any other business or
commercial activities, duties or pursuits, including, but not limited to,
directorships of other companies. Under no circumstance, during the term of this
Agreement, may the Executive engage in any business or commercial activities,
duties or pursuits which compete with the business or commercial activities of
the Bank, nor may the Executive serve as a director or officer or in any other
capacity in a company which competes with the Bank. Executive shall not be
precluded, however, from engaging in voluntary or philanthropic endeavors, from
engaging in activities designed to maintain and improve his professional skills,
or from engaging in activities incident or necessary to personal investments, so
long as they are, in the Boards' reasonable opinion, not in conflict with or
detrimental to the Executive's rendition of services on
23
behalf of the Bank. Executive shall not serve as fiduciary in connection with
the administration of any trust, estate, agency or other fiduciary relationship
without the prior approval from the Bank's Board, other than as a fiduciary on
behalf of, or in connection with the settlement of an estate of, a member of the
Executive's immediate family (i.e., spouse, parent, child, or sibling).
4. COMPENSATION.
(a) Annual Base Salary: As compensation for services rendered to the
Bank under this Agreement, the Executive shall be entitled to receive from
the Bank an annual base salary of not less than ________________ Thousand
($_____________) Dollars per year, (the "Annual Base Salary") payable in
substantially equal bi-weekly installments (or such other intervals as
established by the Bank's payroll policy) prorated for any partial employment
period. The Annual Base Salary shall be reviewed annually, no later than
December 15 of the then calendar year and shall be subject to such annual
change (but not reduced below $___________ without the Executive's written
consent, except in cases of national financial depression or emergency when
compensation reduction has been implemented by the Board of Directors for all
of the Bank's executive staff as may be set by the Board of Directors of the
Bank, taking into account the position and duties of the Executive and the
performance of the Bank.
(b) Bonus. The Board of Directors of the Bank in its sole discretion
may provide for payment of a periodic bonus to the Executive in such an
amount or nature as it may deem appropriate based on Executive's performance,
the financial performance of the Bank and other relevant factors.
5. FRINGE BENEFITS, VACATION, EXPENSES AND PREQUISITES.
(a) The Executive shall be entitled to participate in or receive
benefits under all Bank employee benefit plans including, but not limited to,
any pension plan, profit-sharing plan, savings plan, life insurance plan or
disability insurance plan, as made available by the Bank to its employees,
subject to and on a basis consistent with terms, conditions and overall
administration of such plans and arrangements, and provided, further that
such participation does not violate any state or federal law, rule or
regulation.
(b) Business Expenses. During the term of his employment hereunder, the
Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by him (in accordance with the policies and
procedures established by the Board of Directors of the Bank for its senior
executive officers) in performing services hereunder, provided that the
Executive properly accounts therefor in accordance with Bank policy.
24
(c) Vacation, Holidays, Sick Days and Personal Days. The Executive
shall be entitled to the number of paid vacation days in each calendar year
determined by the Bank from time to time for its senior executive officers, but
not less than fifteen (15) business days per calendar year (prorated in any
calendar year during which the Executive is employed hereunder for less than the
entire such year in accordance with the number of days in such calendar year
during which he is so employed). The Executive shall also be entitled to all
paid holidays, sick days and personal days provided by the Bank to its regular
full-time employees and senior executive officers.
6. NON-DISCLOSURE/TRADE SECRET. During the term of his employment
hereunder, or at any later time, the Executive shall not, without the written
consent of the Board of Directors of the Bank or a person authorized thereby,
knowingly disclose to any person, other than an employee of the Bank or to a
person to whom disclosure is reasonably necessary or appropriate in connection
with the performance by the Executive of his duties as an executive of the Bank,
any confidential information obtained by the Executive while in the employ of
the Bank with respect to any of the Bank's services, products, improvements,
formulas, designs or styles, processes, customers, methods of business or any
business practices, the disclosure of which could be or will be materially
damaging to the Bank, provided, however, that confidential information shall not
include any information known generally to the public (other than as a result of
unauthorized disclosure by the Executive or any person with the assistance,
consent or direction of the Executive) or any information of a type not
otherwise considered confidential by persons encased in the same business or a
business similar to that conducted by the Bank or any information that must be
disclosed as required by law. This provision shall survive termination of the
Executive's employment under this Agreement and/or termination of this
Agreement.
7. RESTRICTIVE COVENANT. The Executive covenants and agrees as follows:
the
25
Executive shall not directly or indirectly, within the marketing area of the
Bank (defined as the area within a thirty (30) mile radius of Bloomsburg,
Pennsylvania) enter into or engage generally in direct or indirect competition
with the Bank or any subsidiary or affiliate of the Bank, either as an
individual on his own or as a partner or joint venturer, or as a director,
officer, shareholder, employee, agent, independent contractor, lessor or
creditor of or for any person, for a period of two (2) years after the date of
termination of his employment, whether voluntary or involuntary. The foregoing
restriction shall not be construed to prohibit the ownership by Executive of not
more than five (5%) percent of any class of securities of any corporation which
is in competition with the Bank, provided that such ownership represents a
passive investment and that neither Executive nor any group of persons including
Executive in any way, either directly or indirectly, manages or exercises
control of any such corporation, guarantees any of its financial obligations,
otherwise takes any part in its business, other than exercising his rights as a
shareholder, or seek to do any of the foregoing. The existence of any claim or
cause of action of the Executive against the Bank, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
Bank of this covenant. The Executive agrees that the restrictions set forth in
this Agreement do not unreasonably interfere with his ability to obtain
employment in his chosen field. The Executive also agrees that any breach of the
restrictions set forth in paragraphs 6, 7 and 8 will result in irreparable
injury to the Bank for which the Bank shall have no adequate remedy at law and
the Bank shall been titled to injunctive relief in order to enforce the
provisions hereof. In the event that this paragraph shall be determined by any
court of competent jurisdiction to be unenforceable in part by reason of it
being too great a period of time or covering too great a geographical area, it
shall be in full force and effect as to that period of time or geographical area
determined to be reasonable by the court.
26
8. NON-SOLICITATION. Executive covenants and agrees that while employed by
the Bank and for a period of two (2) years after the termination of Executive's
employment, either voluntarily or involuntarily, Executive shall not, either
directly or indirectly in any capacity whatsoever, (a) obtain, solicit, divert,
appeal to, attempt to obtain, attempt to solicit, attempt to divert, or attempt
to appeal to any customers, clients or referral sources of the Bank to divert
business from the Bank; (b) solicit any person who was employed by the Bank to
leave the employ of the Bank. For purposes of this covenant, "customers,
clients, and referral sources" shall include all persons who are or were
customers, clients or referral sources of the Bank at any time during the
employment of Executive by the Bank. The non-solicitation covenant set forth in
this paragraph 8 shall not be construed to prohibit a general advertising or
marketing program directed toward the marketing area of the Bank by any
subsequent employer of Executive. The existence of any claim by Executive,
whether predicated upon this Agreement or otherwise, shall not constitute
defense to the Bank's enforcement of or attempts to enforce this provision.
9. NOTIFICATION OF A NON-DISCLOSURE/TRADE SECRET, RESTRICTIVE COVENANT AND
NON-SOLICITATION PROVISIONS. During his employment and for a period of two (2)
years following termination of his employment with the Bank, Executive agrees to
inform any prospective employer of existence of the Non-Disclosure/Trade Secret,
Restrictive Covenant and Non-Solicitation provisions of this Agreement.
10. TERMINATION AND PAYMENTS UPON TERMINATION.
(a) Death of Executive. The Executive's employment hereunder shall
terminate upon his death. Upon his death, the Bank shall pay Executive's then
current annual base salary prorated through the date of death, together with the
dollar value of any accrued vacation and the amount of any unreimbursed business
expenses as of the date of termination;
27
(b) Executive Disability. Executive's employment shall be subject to
termination by the Bank upon thirty (30) days advance written notice in the
event of Executive's disability as defined herein. For purposes of this
Agreement, "disability" shall mean a physical or mental condition of the
Executive (a) that shall have prevented Executive from performance of his duties
as Chief Operating Officer on a full-time basis (i.e., for purposes hereof, an
average of no less than thirty-five (35) hours per week) during a period of
ninety (90) consecutive days, and (b) that, in the opinion, stated to a
reasonable degree of medical certainty, of a physician licensed to practice in
the Commonwealth of Pennsylvania, is likely to continue to prevent Executive
from the performance of his duties on a full-time basis for an additional six
months or more. Executive waives physician-patient privilege and consents to and
authorizes the release of his medical records to the Bank in the event Executive
has not been able to work full-time for a period of ninety (90) consecutive
days. In addition, in such event, Executive (a) authorizes any physician
treating Executive to discuss Executive's condition with authorized
representatives of the Employers and to express opinions as to the prognosis for
Executive's recovery, and (b) consents to such medical examinations by licensed
physicians as the Bank may reasonably require in order to evaluate Executive's
condition and prospects for resumption of his duties on a full-time basis. If
Executive's employment shall be terminated by reason of his disability, the Bank
shall pay Executive his then current annual base salary prorated through the
date of termination, together with the dollar value of any accrued vacation and
the amount of any unreimbursed business expenses as of the date of termination.
(c) For Cause Termination. The Bank may terminate the Executive's
employment hereunder for Cause. For purposes of this Agreement, the Bank shall
have "Cause" to terminate the Executive's employment hereunder upon (1) the
willful and repeated failure by the Executive
28
to substantially perform his duties hereunder following written notice to
Executive specifying the nature of his deficient performance and the failure by
Executive to correct such deficiency within thirty (30) days of said notice, or
(2) the willful engaging by the Executive in serious misconduct injurious to the
Corporation or Bank, or (3) the willful violation by the Executive of the
provisions of paragraphs 3, 6, 7, or 8 hereof after written notice from the Bank
and a failure to cure such violation within thirty (30) days of said notice, or
(4) the dishonesty or gross negligence of the Executive in the performance of
his duties under this Agreement, or (5) the serious and willful breach of
Executive's fiduciary duty to the Bank involving personal profit, or (6) the
willful violation of any law, rule or regulation covering banks or bank officers
or any final and unappealable cease and desist order issued by a bank regulatory
authority, any of which, directly and materially xxxxx the business of the
Corporation or Bank, or (7) moral turpitude or other serious misconduct on the
part of Executive which brings material public discredit to the Bank. Any
termination for cause must be approved by: (1) the affirmative vote of a
majority of the directors of the Bank then in office.
If the Executive's employment shall be terminated for cause, the Bank
shall pay the Executive his full annual base salary (minus applicable taxes
and withholdings) prorated through the date of termination at the rate in
effect at the time of termination (together with the dollar value of any
accrued vacation and the amount of any unreimbursed business expenses as of
the date of termination) and the Bank shall have no further obligation to the
Executive under this Agreement.
(d) Resignation by Executive. The Executive may terminate his employment
hereunder upon one hundred twenty (120) days written notice. Upon Executive's
resignation, the Bank shall pay Executive his annual base salary, (minus
applicable taxes and withholdings) prorated through the date of termination at
the rate then in effect at the time of termination (together with the dollar
value of any accrued vacation and the amount of any unreimbursed business
expenses as of the date of termination) and the Bank shall have no further
obligation to the Executive under this
29
Agreement.
(e) Termination Without Cause. At any time while the Executive is employed
under this Agreement, the Bank may terminate the Executive's employment without
cause and without advance notice. Upon such termination, the Bank shall pay
Executive his then current annual base salary (minus applicable taxes and
withholdings) for a one (1) year period at the rate then in effect at the time
of termination, (together with the dollar value of any accrued vacation and the
amount of any unreimbursed business expenses as of the date of termination) and
the Bank shall have no further obligation to the Executive under this Agreement.
The foregoing salary payments shall be made over a twelve (12) month period
commencing on the effective date of termination, prorated in equal installments
on the Bank's regular paydays.
(f) Termination by Executive for Good Reason. The Executive may terminate
his employment hereunder for Good Reason. The term "Good Reason" shall mean any
breach by the Bank of its obligations under this Agreement, after notice from
the Executive to the Bank that such action of the Bank constitutes Good Reason
and the failure to cure such situation within forty-five (45) days of said
notice. If Executive shall terminate his employment for Good Reason, as defined
herein, the Bank shall pay the Executive an amount equal to one (1) times his
then current annual base salary, minus applicable taxes and withholdings, said
amount shall be paid over a twelve (12) month period, prorated in equal
installments on the Bank's regular pay days.
(g) Non-Renewal by the Bank. The Bank may terminate the Executive's
employment pursuant to an election not to renew this Agreement as provided under
paragraph 1 above. Upon such termination, the Bank shall pay Executive his
annual base salary (minus applicable taxes and withholdings) for a one (1) year
period at the rate then in effect at the time of termination (together with the
dollar value of any accrued vacation and the amount of any unreimbursed business
expenses as of the date of termination) and the Bank shall have no further
obligation to Executive under this Agreement.
(h) Non-Renewal by Executive. The Executive may terminate his employment
pursuant to an election not to renew this Agreement as provided under paragraph
1 above. Upon such termination, the Bank shall pay Executive his annual base
salary (minus applicable taxes and withholdings) prorated through the date of
termination at the rate then in effect at the time of termination (together with
the dollar value of any accrued vacation and the amount of any unreimbursed
business expenses as of the date of termination) and the Bank shall have no
further obligation to the Executive under this Agreement.
30
Upon termination for any reason, the Bank shall pay to Executive the
dollar value of any accrued vacation and the amount of any unreimbursed
business expenses as of the date of termination.
11. AUTOMATIC TERMINATION. The parties agree that Executive's employment
under this Agreement shall not extend beyond the 31st day of December in the
calendar year in which Executive's 65th birthday occurs. Upon Executive's
termination of employment under this provision, the Bank shall have no further
obligation to Executive under this Agreement for any severance/salary
continuation payment.
12. DAMAGES FOR BREACH OF CONTRACT. In the event of a breach of this
Agreement by either the Bank or the Executive resulting in damages to another
party to this Agreement, that party may recover from the party breaching the
Agreement only those damages as set forth herein.
13 NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when hand-delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive: XXXXX XXXXXX
If to the Bank: Columbia County Farmers National Bank
Chairman, Board of Directors
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
14. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the Executive, the Bank and any of their successors or assigns,
provided however, that the Executive may not commute, anticipate, encumber,
dispose or assign any payment.
31
15. SEVERABILITY. If any provision of this Agreement is declared
unenforceable for any reason, the remaining provisions of this Agreement shall
be unaffected and shall remain in full force and effect.
16. AMENDMENT. This Agreement may be amended or canceled only by mutual
agreement of the parties in writing.
17. PAYMENT OF MONEY DUE DECEASED EXECUTIVE. In the event of Executive's
death, any moneys that may be due him from the Bank under this Agreement as of
the date of death shall be paid to the person designated by him in writing for
this purpose, or in the absence of any such designation to: (i) his spouse if
she survives him, or (ii) his estate if his spouse does not survive him.
18. LAW GOVERNING. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
19. ENTIRE AGREEMENT. This Agreement supersedes any and all agreements,
either oral or in writing, between the parties with respect to the employment of
the Executive by the Bank, and this Agreement contains all the covenants and
agreements between the parties with respect to such employment.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement to be duly executed in their respective names
and, in the case of the Bank, by its authorized representatives, the day and
year above mentioned.
ATTEST: COLUMBIA COUNTY FARMERS
NATIONAL BANK
/s/ Xxx X. Xxxxx /s/ Xxxx X. Xxxxxxxx
------------------------ --------------------------------
Secretary Chairman of the Board
32
WITNESS:
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
------------------------ --------------------------------
XXXXX XXXXXX
33
