EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") made as of the _____ day
of August 1999, effective as of January 1, 1999, between MAIN
STREET BANCORP, INC., a Pennsylvania business corporation
("Main"), MAIN STREET BANK, a Pennsylvania banking corporation
(the "Bank"), and XXXXXXX X. XXXXXX, an individual (the
"Executive").
WITNESSETH:
WHEREAS, Main, Heritage National Bank ("HNB") and the
Executive entered into an agreement dated as of May 1, 1998 (the
"1998 Agreement"), regarding, among other things, the Employment
of the Executive by Main and HNB which in part superseded a prior
Change in Control dated as of September 15, 1997, by and among
Executive, HNB, and Heritage National Bancorp, Inc. ("Change in
Control Agreement");
WHEREAS, HNB has, effective January 1, 1999,
consolidated with Berks County Bank to form the Bank;
WHEREAS, Main has granted to Executive 25,000 stock
options pursuant to a Stock Option Agreement, with a date of
grant of July 30, 1999, in consideration for the Executive's
termination of any and all rights under the Change in Control
Agreement, and:
WHEREAS, Main, the Bank and the Executive desire to
enter into a new Agreement regarding, among other things, the
employment of the Executive by Main and the Bank and,
concurrently therewith, to terminate the 1998 Agreement and the
Change in Control Agreement, all as hereinafter set forth.
NOW, THEREFORE, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Employment. Main and the Bank each hereby employ
the Executive, and the Executive hereby accepts employment with
Main and the Bank, on the terms and conditions set forth in this
Agreement.
2. Duties of Employee. The Executive will perform and
discharge well and faithfully such duties as an executive officer
of Main and the Bank as may be assigned to him from time to time
by the Board of Directors of Main or the Chairman of such Board.
The Executive will be employed as Executive Vice President and
Chief Administrative Officer of Main and the Bank, and will hold
such other titles as may be given to him from time to time by the
Board of Directors of Main or the Chairman of such Board. The
Executive will devote his full time, attention and energies to
the business of Main and the Bank and will not, during the
Employment Period (as defined in Section 3), be employed or
involved in any other business activity, whether or not such
activity is pursued for gain, profit or other pecuniary
advantage; provided, however, that this section will not be
construed as preventing the Executive from (a) passively
investing his personal assets, (b) acting as a member of the
Board of Directors of Main, the Bank or any other corporation not
in competition with either, or as a member of the Board of
Trustees of any other organization, or (c) being involved in any
community, civic or similar activity.
3. Term of Employment. The Executive's employment
under this Agreement will be for a period (the "Employment
Period") commencing upon the date of this Agreement and ending at
the end of the term of this Agreement pursuant to Section 19,
unless the Executive's employment is sooner terminated in
accordance with Section 5 or one of the following provisions:
(a) Termination for Cause. The Executive's
employment under this Agreement may be terminated at any time
during the Employment Period for "Cause" (as herein defined), by
action of the Board of Directors of Main or the Chairman of such
Board, upon giving notice of such termination to the Executive at
least 15 days prior to the date upon which such termination is to
take effect. As used in this Agreement, "Cause" means any of the
following events:
(i) the Executive is convicted of or enters
a plea of guilty or nolo contendere to a felony, a crime of
falsehood, or a crime involving fraud or moral turpitude, or the
actual incarceration of the Executive for a period of 45
consecutive days;
(ii) the Executive willfully and repeatedly
fails to follow the lawful instructions of the Board of Directors
of Main after the Executive's receipt of written notice of such
instructions, other than a failure resulting from the Executive's
incapacity because of physical or mental illness;
(iii) a government regulatory agency
recommends or orders in writing that the Bank terminate the
employment of the Executive with the Bank or relieve him of his
duties as such relate to the Bank; or
(iv) the Executive violates the covenant not
to compete contained in Section 8 or the confidentiality
provisions of Section 9.
Notwithstanding the foregoing, the recommendation or
order of a government regulatory agency referred to in
Section 3(a)(iii) will not constitute "Cause" giving Main the
right to terminate this Agreement as it relates to Main unless;
(i) such recommendation or order results
from an assessment against the Executive of a final unappealable
civil monetary penalty ("tier 3") under Section 8(i)(2)(C) of the
Federal Deposit Insurance Act;
(ii) such penalty is based on a knowing or
reckless (A) violation of law or regulation, (B) unsafe or
unsound practice, or (C) breach of fiduciary duty;
(iii) in the case of each of (A), (B) and
(C) above, is either intentionally concealed by the Executive
from the Board (and is not actually known by the Board), or
committed by the Executive after repeated warnings by the Board
or the governmental regulatory agency; and
(iv) in the case of each of (A), (B) and (C)
above, results in a substantial loss to Bank.
In addition, the Executive's employment under this Agreement will
not be deemed to have been terminated for "Cause" under
Sections 3(a) (i) or (ii) if such termination took place solely
as a result of:
(i) questionable judgment on the part of the
Executive;
(ii) any act or omission believed by the
Executive, in good faith, to have been in, or not opposed to,
the best interests of Main or of the Bank; or
(iii) any act or omission in respect of
which a determination could properly be made that the Executive
met the applicable standard of conduct prescribed for
indemnification or reimbursement or payment of expenses under the
Articles of Incorporation or By-laws of Main or the Bank or the
directors' and officers' liability insurance of Main or the Bank,
in each case as in effect at the time of such act or omission.
If the Executive's employment is terminated under the provisions
of this subsection, then all rights of the Executive under
Section 4 will cease as of the effective date of such
termination.
(b) Termination Without Cause. The Executive's
employment under this Agreement may be terminated at any time
during the Employment Period without "Cause" (as defined in
Section 3 (a)), by action of the Board of Directors of Main or
the Chairman of such Board, upon giving notice of such
termination to the Executive at least 30 days prior to the date
upon which such termination is to take effect. If the
Executive's employment is terminated under the provisions of this
subsection, then the Executive will be entitled to receive the
compensation set forth in Section 6.
(c) Voluntary Termination, Retirement or Death.
If the Executive voluntarily terminates employment without Good
Reason (as defined in Section 5), retires or dies, the
Executive's employment under this Agreement will be deemed
terminated as of the date of the Executive's voluntary
termination, retirement or death, and all rights of the Executive
under Section 4 will cease as of the date of such termination and
any benefits payable to the Executive will be determined in
accordance with the pension, welfare, fringe benefit, expense
reimbursement, salary deferral and insurance programs of Main and
of the Bank then in effect.
(d) Disability. If the Executive is
incapacitated by accident, sickness, or otherwise so as to render
the Executive mentally or physically incapable of performing the
essential duties required of the Executive under Section 2,
notwithstanding reasonable accommodation, for a continuous period
of six months, then, upon the expiration of such period or at any
time thereafter, by action of the Board of Directors of Main or
the Chairman of such Board, the Executive's employment under this
Agreement may be terminated immediately upon giving the Executive
notice to that effect. If the Executive's employment is
terminated under the provisions of this subsection 3(d), then all
rights of the Executive under Section 4 will cease as of the last
business day of the week in which such termination occurs, and
the Executive will thereafter be entitled to the benefits to
which he is entitled under any disability plan of Main or the
Bank in which he is then a participant (including the minimum
benefit described in Section 4(d)(iv)).
4. Employment Period Compensation and Related Matters.
(a) Salary. For services performed by the
Executive under this Agreement, Main and the Bank will pay the
Executive a salary, in the aggregate, during the Employment
Period, at the annualized rate of $180,000, payable at the same
times as salaries are payable to other executive employees of
Main or of the Bank. Main and/or the Bank may, from time to
time, increase (but not decrease) the Executive's salary, and any
and all such increases will be deemed to constitute amendments to
this subsection to reflect the increased amounts, effective as of
the dates established for such increases by the Board of
Directors of Main or of the Bank in the resolutions authorizing
such increases.
(b) Bonus. For services performed by the
Executive under this Agreement, Main will pay the Executive a
bonus, annually during the Employment Period, in such amounts (if
any) and at such times as is provided in such incentive plan for
executive officers as may be approved by the Board of Directors
of Main and in effect from time to time. In addition, Main may,
from time to time, pay such other bonus or bonuses to the
Executive as Main, in its sole discretion, deems appropriate.
The payment of any such bonuses will not reduce or otherwise
affect any other obligation of Main and/or the Bank to the
Executive provided for in this Agreement.
(c) Pension and Welfare Benefits. Main will
provide the Executive, during the Employment Period, with pension
and welfare benefits (within the meaning of Section 3 of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA")) in the aggregate not less favorable than those
received by other employees of Main.
(d) Fringe Benefits.
(i) In General. Except as otherwise
provided in this subsection, Main will provide the Executive,
during the Employment Period, with such fringe benefits as may be
provided generally from time to time for its executive officers.
(ii) Deferred Compensation. The Executive
will be entitled to participation in and maintenance of the Main
Street Bancorp, Inc. Deferred Compensation Plan to be implemented
within 60 days of the date of this Agreement.
(iii) Life Insurance. In addition to the
life insurance coverage to which the Executive may be entitled
from time to time under Main's life insurance plan, Main will
provide him with supplemental life insurance of not less than
(A) 50% of his annualized base salary or (B) $100,000 if he
initially qualifies therefor on a standard underwriting basis.
The Executive will be the owner of the policy providing such life
insurance coverage. Upon Executive's retirement Main shall
provide to Executive, at Main's expense life insurance coverage
in an amount equal to one-half of the life insurance coverage to
which Executive was entitled under Main's life insurance plan
immediately preceding Executive's retirement, plus one-half of
the supplemental life insurance coverage to which Executive was
entitled under this Agreement, immediately preceding Executive's
retirement.
(iv) Disability Insurance. In addition to
the disability coverage to which the Executive may be entitled
from time to time under Main's disability insurance plan, Main
will provide him with such additional monthly disability
insurance coverage (if any) as may be necessary to ensure a
minimum level of coverage of the greater of (A) 50% of his
monthly base salary or (B) $6,000 per month, if he qualifies
therefor on a standard underwriting basis.
(v) Vacation. The Executive will be
entitled to not less than four weeks of vacation per calendar
year, plus one additional day for each five years of service with
Main and any predecessor of Main. The right to carry over unused
vacation days will be subject to the executive personnel policies
of Main from time to time in effect.
(vi) Automobile. Main will provide the
Executive with the use of a purchased or leased automobile. The
make and model of such automobile will be reasonably consistent
with the Executive's position with Main. Expenses of the use of
such automobile will be borne as provided from time to time in
policies approved by Main's Board of Directors.
(vii) Stock Awards. Main will annually
award to the Executive, no later than February 15, 1284 shares of
its common stock. The number of shares to be awarded annually
will be subject to such equitable adjustment as may be determined
by Main's Board of Directors, in its discretion, in order to take
into account the effect of stock dividends, stock splits,
reorganizations and similar transactions or events.
(viii) Stock Options. The Executive will be
entitled to such stock option grants as may be granted from time
to time by the Board of Directors of Main and/or the Compensation
Committee of such Board and as are consistent with the
Executive's responsibilities and performance.
(e) Expense Reimbursement. The Executive will be
entitled to reimbursement of all expenses incurred by him in the
discharge of his duties hereunder, or otherwise in furtherance of
the business of Main and the Bank, provided he renders an
accounting of such expenses in such manner as may be required
from time to time for employees generally.
(f) Salary Deferral. The Executive may request
that the payment of any portion of his base salary and/or bonus
for any calendar year be deferred. Such request must be made in
writing to Main and the Bank before the beginning of such
calendar year and must include the period of deferral requested
by the Executive (the "Deferral Period"). If the Board of
Directors of Main and of the Bank approve such request, the
Executive will be entitled to receive, at the end of the Deferral
Period, the deferred portion of his base salary and/or bonus plus
interest at a compounded rate of 6% per annum. Any salary and/or
bonus which is deferred as described herein will be credited to
an account on the books of Main and of the Bank established in
the name of the Executive. However, this account will not be
funded, and neither Main nor the Bank will be deemed to be a
trustee for the Executive with respect to any deferred amount.
The liabilities of Main and the Bank to the Executive hereunder
are those of a debtor pursuant to such contractual obligations as
are created by this Agreement. No liabilities of Main and the
Bank which arise under this subsection will be deemed to be
secured by any pledge or other encumbrance on any property of
Main or of the Bank. Main and the Bank will not be required to
segregate any funds representing such deferred amounts, and
nothing herein will be construed as providing for such
segregation.
5. Resignation of the Executive for Good Reason.
(a) Events Giving Right to Terminate for Good
Reason. The Executive may resign for Good Reason (as herein
defined) at any time during the Employment Period, as hereinafter
set forth. As used in this Agreement, the term "Good Reason"
means any of the following:
(i) any reduction in title or a material
adverse change in the Executive's responsibilities or authority
which are inconsistent with, or the assignment to the Executive
of duties inconsistent with, the Executive's status as Executive
Vice President and Chief Administrative Officer of Main and the
Bank;
(ii) any reassignment of the Executive to a
principal office which is more than 50 miles from 000 Xxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx;
(iii) any removal of the Executive from
office except for any termination of the Executive's employment
under the provisions of Section 3(a) or (d);
(iv) any reduction in the Executive's annual
base salary as in effect on the date hereof or as the same may be
increased from time to time;
(v) Any failure by Main and/or the Bank to
provide the Executive with benefits at least as favorable as
those enjoyed by the Executive under any of the pension or
welfare plans (as such terms are defined in ERISA Section 3) of
Main in which the Executive is participating on the date of this
Agreement, or the taking of any action that would materially
reduce any of such benefits, unless the change is part of a
change applicable in each case to employees generally; or
(vi) any material breach of this Agreement
by Main or the Bank, coupled with the failure to cure the same
within 30 days after receipt of a written notice of such breach
from the Executive.
(b) Notice of Termination. At the option of the
Executive, exercisable by the Executive within 90 days after the
occurrence of the event constituting Good Reason, the Executive
may resign from employment under this Agreement by a notice in
writing (the "Notice of Termination") delivered to Main and the
Bank and the provisions of Section 6 will thereupon apply.
(c) Special Right of Termination.
Notwithstanding anything herein to the contrary, but subject to
the provisions of Section 3(a), within the one-year following the
occurrence of a Change in Control (as defined below), the
Executive may terminate his employment for any or no reason by
delivering a written notice, similar to a Notice of Termination,
to Main; and such termination will be deemed for all purposes to
constitute a resignation for Good Reason. In such event, he will
be entitled to the payments and benefits described in Section 6.
(d) Change in Control Defined. For purposes of
this Agreement, the term "Change in Control" means any of the
following:
(i) any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the Securities and Exchange Act of
1934 (the "Exchange Act")), other than Main, a subsidiary of
Main, an employee benefit plan of Main or a subsidiary of Main
(including a related trust), becomes the beneficial owner (as
determined pursuant to Rule 13d-3 under the Exchange Act),
directly or indirectly of securities of Main representing more
than 20% of the combined voting power of Main's then outstanding
securities;
(ii) the occurrence of, or execution of an
agreement providing for, a sale of all or substantially all of
the assets of Main or the Bank to an entity which is not a direct
or indirect subsidiary of Main;
(iii) the occurrence of, or execution of an
agreement providing for, a reorganization, merger, consolidation
or similar transaction involving Main, unless (A) the
shareholders of Main immediately prior to the consummation of any
such transaction will initially own securities representing a
majority of the voting power of the surviving or resulting
corporation, and (B) the directors of Main immediately prior to
the consummation of such transaction will initially represent a
majority of the directors of the surviving or resulting
corporation; or
(iv) any other event which is at any time
irrevocably designated as a "Change in Control" for purposes of
this Agreement by resolution adopted by a majority of the
directors of Main.
6. Rights in Event of Certain Termination of
Employment. In the event that the Executive resigns from
employment for Good Reason, by delivery of a Notice of
Termination or other permitted notice to Main and the Bank, or
the Executive's employment is terminated by Main without Cause,
Executive will be entitled to receive the amounts and benefits
set forth in this section.
(a) Basic Payments. The Executive will be paid
an amount equal to three times the sum of (i) the highest
annualized base salary paid to him during the year of termination
or the immediately preceding two calendar years, and (ii) the
highest bonus paid to him with respect to one of the three
calendar years immediately preceding the year of termination.
Such amount will be paid to the Executive in 36 equal monthly
installments (without interest), beginning 30 days following the
date of termination of employment. Notwithstanding the preceding
provisions of this subsection to the contrary, in the event this
section becomes applicable following a Change in Control, the
Executive will, within 30 days after his termination of
employment, be paid a lump sum equal to the present value of the
amounts otherwise payable under this subsection. For purposes of
the preceding sentence, present value will be determined by using
the short-term applicable federal rate under Section 1274 of the
Internal Revenue Code of 1986, as amended (the "Code"), in effect
on the date of termination of employment. For purposes of this
subsection, to the extent necessary, base salary and bonuses with
any predecessor of Main or an affiliate thereof shall be taken
into account.
(b) Supplemental Payment in Lieu of Certain
Benefits. In lieu of continued pension, welfare and other
benefits, a lump sum cash payment of $85,000 will be paid to the
Executive within 30 days following the date of termination of
employment.
(c) Excise Tax Matters in General. In the event
that the amounts and benefits payable under this section, when
added to other amounts and benefits which may become payable to
the Executive by Main and/or the Bank, are such that he becomes
subject to the excise tax provisions of Code Section 4999, Main
and/or the Bank will pay him such additional amount or amounts as
will result in his retention (after the payment of all federal,
state and local excise, employment, and income taxes on such
payments and the value of such benefits) of a net amount equal to
the net amount he would have retained had the initially
calculated payments and benefits been subject only to income and
employment taxation. For purposes of the preceding sentence, the
Executive will be deemed to be subject to the highest marginal
federal, state and local tax rates. All calculations required to
be made under this subsection will be made by Main's independent
certified public accountants, subject to the right of Executive's
representative to review the same. All such amounts required to
be paid will be paid at the time any withholding may be required
under applicable law, and any additional amounts to which the
Executive may be entitled will be paid or reimbursed no later
than 15 days following confirmation of such amount by Main's
accountants. In the event any amounts paid hereunder are
subsequently determined to be in error because estimates were
required or otherwise, the parties agree to reimburse each other
to correct such error, as appropriate, and to pay interest
thereon at the applicable federal rate (as determined under Code
Section 1274A for the period of time such erroneous amount
remained outstanding and unreimbursed). The parties recognize
that the actual implementation of the provisions of this
subsection are complex and agree to deal with each other in good
faith to resolve any questions or disagreements arising
hereunder.
(d) Limited Restriction on Payments and Benefits
to Avoid Excise Tax. Notwithstanding the provision of
Subsection (c), if (i) it is determined that the payments to be
provided to the Executive hereunder would subject him to the
excise tax provisions of Code Section 4999, but (ii) a 5%
reduction in the present value (as determined pursuant to the
provisions of Code Section 280G) of such payments would result in
no such excise tax being owed, then such payments will be reduced
or eliminated by the smallest amount necessary to avoid the
imposition of such excise tax. The Executive will be entitled,
within a reasonable period of time, to specify which payments
will be reduced or eliminated.
7. Expiration of Agreement. In the event this
Agreement expires by its terms in accordance with the provisions
of Section 19(a) and the Executive's employment thereafter
voluntarily or involuntarily terminates prior to the attainment
of age 65 and other than for Cause, Main will pay or cause to be
paid to him, in one lump sum within 30 days following
termination, an amount equal to 1.5 times the sum of the amounts
described in Clauses (i) and (ii) of Section 6(a).
8. Covenant Not to Compete.
(a) The Executive hereby acknowledges and
recognizes the highly competitive nature of the business of
Main and of the Bank and accordingly agrees that, during and for
the applicable period set forth in Subsection (c), the Executive
will not:
(i) be engaged, directly or indirectly,
either for his own account or as agent, consultant, employee,
partner, officer, director, proprietor, investor (except as an
investor owning less than 5% of the stock of a publicly owned
company) or otherwise of, any person, firm, corporation, or
enterprise engaged, in (A) the banking, or financial services
industry, or (B) any other activity in which Main or any of its
subsidiaries is engaged during the Employment Period, in either
case (A) or (B) in any county in which, at any time during the
Employment Period or at the date of termination of the
Executive's employment, a branch, office or other facility of
Main or any of its subsidiaries is located, or in any county
contiguous to such a county, including contiguous counties
located outside of the Commonwealth of Pennsylvania (the "Non-
Competition Area"); and
(ii) provide financial or other assistance
to any person, firm, corporation, or enterprise engaged in
(A) the banking or financial services industry, or (B) any other
activity in which Main or any of its subsidiaries is engaged
during the Employment Period, in the Non-Competition Area.
(b) It is expressly understood and agreed that,
although the Executive, Main and the Bank consider the
restrictions contained in Subsection (a) reasonable for the
purpose of preserving for Main and its subsidiaries their
goodwill and other proprietary rights, if a final judicial
determination is made by a court having jurisdiction that the
time or territory or any other restriction contained in
Subsection (a) is an unreasonable or otherwise unenforceable
restriction against the Executive, the provisions of
Subsection (a) will not be rendered void but will be deemed
amended to apply as to such maximum time and territory and to
such other extent as such court may judicially determine or
indicate to be reasonable.
(c) The provisions of this section will be
applicable commencing on the date of this Agreement and ending as
follows:
(i) at the termination of the payments and
benefits provided under Section 6; provided, however, that this
clause will not apply in the event Executive's termination of
employment occurs following a Change in Control;
(ii) one year following the termination of
Executive's employment, in the case of a voluntary termination
without Good Reason; or
(iii) in all other cases, the date of
Executive's termination of employment.
9. Confidentiality.
(a) As used in this section, the term
"Confidential Information" means any and all information
regarding the organization, business or finances of Main or any
of its subsidiaries and affiliates, including, but not limited
to, any and all business plans and strategies, financial
information, proposals, reports, marketing plans and information,
cost information, customer information, claims history and
experience data, sales volume and other sales statistics,
personnel data, pricing information, concepts and ideas,
information respecting existing and proposed investments and
acquisitions, and information regarding customers and suppliers,
but the term "Confidential Information" will not include
information created by the Executive or which prior to the
Executive's receipt thereof (i) was generally publicly available,
or (ii) was in the Executive's possession free of any
restrictions on it use or disclosure and from a source other than
Main or any of its subsidiaries or affiliates.
(b) The Executive acknowledges and agrees that
his employment by Main and the Bank will afford him an
opportunity to acquire Confidential Information and that the
misappropriation or disclosure of any Confidential Information
would cause irreparable harm to Main and its subsidiaries and
affiliates.
(c) During the Employment Period and for a period
of two years thereafter, the Executive will not use for the
benefit of anyone other than Main and its subsidiaries and
affiliates or disclose any of the Confidential Information for
any reason or purpose whatsoever except to authorized
representatives of such business entities or as directed or
authorized by Main.
(d) With respect to those items of Confidential
Information which constitute trade secrets under applicable law,
the Executive's obligations of confidentiality and nondisclosure
as set forth in this section will continue and survive after the
two-year period as provided in Subsection (c) to the greatest
extent permitted by applicable law.
(e) The Executive will not remove any records,
documents, or any other tangible items (excluding the Executive's
personal property) from the premises of Main or its subsidiaries
or affiliates, in either original or duplicate form, except as
needed in the ordinary course of performing services hereunder.
(f) Upon termination of this Agreement, the
Executive will immediately surrender to the owner thereof all
documents (other than documents created by him) in his
possession, custody or control embodying the Confidential
Information or any part thereof and will not thereafter remove
the same from the premises on which it is located.
10. Remedies. Executive acknowledges and agrees that
the remedy at law of Main and of the Bank for a breach or
threatened breach of any of the provisions of Section 8 or 9
would be inadequate and, in recognition of this fact, in the
event of a breach or threatened breach by the Executive of any of
the provisions of Section 8 or 9, it is agreed that, in addition
to the remedy at law, Main and the Bank will be entitled to,
without posting any bond, and the Executive agrees not to oppose
any request of Main and the Bank for, equitable relief in the
form of specific performance, a temporary restraining order, a
temporary or permanent injunction, or any other equitable remedy
which may then be available. Nothing herein contained will be
construed as prohibiting Main and the Bank from pursuing any
other remedies available to them for such breach or threatened
breach.
11. Arbitration. Main, the Bank and Executive
recognize that in the event a dispute should arise between them
concerning the interpretation or implementation of this
Agreement, lengthy and expensive litigation will not afford a
practical resolution of the issues within a reasonable period of
time. Consequently, each party agrees that all disputes,
disagreements and questions of interpretation concerning this
Agreement are to be submitted for resolution to the American
Arbitration Association ("Association") in Philadelphia,
Pennsylvania, in accordance with the Individual Employment
Dispute Resolution rules of the Association. Main and the Bank,
or Executive, may initiate an arbitration proceeding at any time
by giving notice to the others in accordance with the rules of
the Association. The Association will designate a single
arbitrator to conduct the proceeding, but Main and the Bank, and
the Executive, may, as a matter of right, require the
substitution of a different arbitrator chosen by the Association.
Each such right of substitution may be exercised only once. The
arbitrator will not be bound by the rules of evidence and
procedure of the courts of the Commonwealth of Pennsylvania but
will be bound by the substantive law applicable to this
Agreement. The decision of the arbitrator, absent fraud, duress,
incompetence or gross and obvious error of fact, will be final
and binding upon the parties and will be enforceable in courts of
proper jurisdiction. Following written notice of a request for
arbitration, Main and the Bank, and the Executive, will be
entitled to an injunction restraining all further proceedings in
any pending or subsequently filed litigation concerning this
Agreement, except as otherwise provided herein.
12. Legal Expenses. Main and/or the Bank will pay to
the Executive all reasonable legal fees and expenses when
incurred by the Executive in seeking to obtain or enforce any
right or benefit provided by this Agreement, provided he brings
the action in good faith.
13. Indemnification. Main and the Bank will indemnify
the Executive, to the fullest extent permitted under Pennsylvania
and federal law, with respect to any threatened, pending or
completed legal or regulatory action, suit or proceeding brought
against him by reason of the fact that he is or was a director,
officer, employee or agent of Main or the Bank, or is or was
serving at the request of Main or the Bank as a director,
officer, employee or agent of another person or entity. To the
fullest extent permitted by Pennsylvania and federal law, Main
and the Bank will, in advance of final disposition, pay any and
all expenses incurred by the Executive in connection with any
threatened, pending or completed legal or regulatory action, suit
or proceeding with respect to which he may be entitled to
indemnification hereunder. Main and the Bank will use their best
efforts to obtain insurance coverage for the Executive under a
policy covering directors and officers thereof against
litigation, arbitrations and other legal and regulatory
proceedings; provided, however, that nothing herein is to be
construed as requiring such action if the Board of Directors of
Main and the Bank determine that such insurance coverage cannot
be obtained at commercially reasonable rates.
14. Notices. Any notice required or permitted to be
given under this Agreement will, to be effective hereunder, be
given to both Main and the Bank, in the case of notices given by
the Executive, and will, to be effective hereunder, be given by
both Main and the Bank, in the case of notices given to the
Executive. Any notice given by Main, to the extent required will
be deemed to be given by Main and the Bank. Any notice given to
Main to the extent required will be deemed to be given to Main
and the Bank. Any such notice will be deemed properly given if
in writing and if mailed by registered or certified mail, postage
prepaid with return receipt requested, to the residence of the
Executive, in the case of notices to the Executive, and to the
respective principal offices of Main and of the Bank, in the case
of notices to Main and the Bank.
15. Waiver. No provision of this Agreement may be
modified, waived, or discharged unless such waiver, modification,
or discharge is agreed to in writing and signed by the Executive,
an executive officer of Main, and an executive officer of the
Bank, each such officer specifically designated by the Board of
Directors of Main and the Bank, respectively. No waiver by any
party hereto at any time or 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 will be deemed a
waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time.
16. Assignment. This Agreement is not assignable by
any party hereto, except by Main and the Bank to any successor in
interest to the respective businesses of Main and the Bank.
17. Entire Agreement. This Agreement contains the
entire agreement of the parties relating to the subject matter of
this Agreement and, in accordance with the provisions of Section
27, supersedes any prior agreement of the parties.
18. Successors; Binding Agreement.
(a) Main 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 Main and/or the Bank to expressly assume and agree to
perform this Agreement in the same manner and to the same extent
that Main and the Bank would be required to perform it if no such
succession had taken place. Failure by Main and the Bank to
obtain such assumption and agreement prior to the effectiveness
of any such succession will constitute a material breach of this
Agreement. As used in this Agreement, "Main" and the "Bank"
means Main and the Bank as hereinbefore defined and any successor
to the business and/or assets of Main and/or the Bank as
aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
(b) This Agreement will inure to the benefit of
and be enforceable by the Executive's personal or legal
representatives, executors, administrators, heirs, distributees,
devisees, and legatees. If the Executive should die while any
amount is payable to the Executive under this Agreement if the
Executive had continued to live, all such amounts, unless
otherwise provided herein, will be paid in accordance with the
terms of this Agreement to the Executive's devisee, legatee, or
other designee, or, if there is no such designee, to the
Executive's estate.
19. Termination.
(a) Unless the Executive's employment is
terminated pursuant to the provisions of Section 3 or Section 5,
the term of this Agreement will be for a period commencing on the
effective date of this Agreement and ending on December 31, 2001;
provided, however, that this Agreement will be automatically
renewed on January 1, 2001 for the two-year period commencing on
such date and ending on December 31, 2002, unless either party
gives written notice of nonrenewal to the other party on or
before November 1, 2000 (in which case this Agreement will
continue in effect through December 31, 2001); and provided
further, that if this Agreement is renewed on January 1, 2001, it
will be automatically renewed on January 1 of each subsequent
year (the "Annual Renewal Date") for a period ending two years
from each Annual Renewal Date unless either party gives written
notice of nonrenewal to the other party at least 60 days prior to
an Annual Renewal Date (in which case this Agreement will
continue in effect for a term ending one year from the Annual
Renewal Date immediately following such notice). For purposes of
the preceding sentence Main and the Bank will be considered one
party.
(b) Any termination of the Executive's employment
under this Agreement or of this Agreement will not affect the
benefit, noncompetition and confidential information provisions
of Sections 6, 7, 8, 9 or 12, which will, if relevant, survive
any such termination and remain in full force and effect in
accordance with their respective terms.
(c) Except as provided in Section 27, nothing
herein will be construed as limiting, restricting or eliminating
any rights the Executive may have under any plan, contract or
arrangement to which he is a party or in which he is a vested
participant; provided, however, that any termination payments
required hereunder will be in lieu of any severance benefits to
which he may be entitled under a severance plan or arrangement of
Main and the Bank; and provided further, that if the benefits
under any such plan or arrangement may not legally be eliminated,
then the payments hereunder will be correspondingly reduced in
such equitable manner as the Board of Directors of Main may
determine.
20. No Mitigation or Offset. The Executive will not
be required to mitigate the amount of any payment provided for in
this Agreement by seeking employment or otherwise; nor will any
amounts or benefits payable or provided hereunder be reduced in
the event he does secure employment, except as otherwise provided
herein.
21. Validity. The invalidity or unenforceability of
any provisions of this Agreement will not affect the validity or
enforceability of any other provision of this Agreement, which
will remain in full force and effect. In addition, if a
government regulatory agency recommends or orders that the Bank
terminate the employment of the Executive with the Bank or
relieve him of his duties as such relate to the Bank, the
Agreement or such provision will nevertheless be and remain an
obligation of Main enforceable against it in accordance with its
terms, notwithstanding any such termination of the Executive's
employment with the Bank.
22. Applicable Law. Except to the extent preempted by
federal law, this Agreement will be governed by and construed in
accordance with the domestic internal law of the Commonwealth of
Pennsylvania.
23. Number. Words used herein in the singular will be
construed as being used in the plural, as the context requires,
and vice versa.
24. Headings. The headings of the sections and
subsections of this Agreement are for convenience only and will
not control or affect the meaning or construction or limit the
scope or intent of any of the provisions of this Agreement.
25. References to Entities. All references to Main
will be deemed to include references to the Bank, as appropriate
in the relevant context, and vice versa. As of the date of this
Agreement, Main and the Bank share one Board of Directors. To
the extent, under this Agreement or law, an action is required by
the Board of Directors of the Bank, a similar action of the Board
of Directors of Main shall be deemed sufficient.
26. Guaranty. Main hereby irrevocably and
unconditionally guarantees to the Executive the full and timely
performance by the Bank of each and every obligation of the Bank
contained in this Agreement.
27. Effective Date; Termination of Prior Agreement.
This Agreement will become effective immediately upon the
execution and delivery of this Agreement by the parties hereto.
Upon the execution and delivery of this Agreement, any prior
agreement relating to the subject matter hereof, including
without limitation the 1998 Agreement and the Change in Control
Agreement, will be deemed automatically terminated and be of no
further force or effect.
28. Withholding for Taxes. All amounts and benefits
paid or provided hereunder will be subject to withholding for
taxes as required by law.
29. Individual Agreement. This Agreement is an
agreement solely between and among the parties hereto. It is
intended to constitute a nonqualified unfunded agreement for the
benefit of a key management employee and will be construed and
interpreted in a manner consistent with such intention.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
MAIN STREET BANCORP, INC.
By_________________________________
(SEAL) Attest:____________________________
(Assistant) Secretary
("Main")
MAIN STREET BANK
By_________________________________
(SEAL) Attest:____________________________
(Assistant) Secretary
("Bank")
Witness:
___________________________ _____________________________(SEAL)
XXXXXXX X. XXXXXX
("Executive")
8
Page <1>
