Exhibit 10.9
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT, made as of the ____
day of January 2002, among FIRST LEESPORT BANCORP, INC. ("Bancorp"), a
Pennsylvania business corporation having a place of business at 0000
Xxxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, XXXXXX & XXXX, INC. ("E&B"), a
Pennsylvania corporation having a place of business at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxx, and XXXXXXX X. XXXXXXX ("Executive"), an adult
individual.
BACKGROUND:
1. Bancorp, E&B, and Executive are presently parties to an
employment agreement, dated September 17, 1998 (the "Employment Agreement"), a
copy of which is attached as Exhibit "A."
2. For ease of administration, Bancorp desires to amend certain of
its outstanding employment agreements with executive officers, including the
Employment Agreement, to provide for a uniform termination date of December 31
by extending the existing termination date under the Employment Agreement.
3. Executive has agreed to amend the Employment Agreement to provide
for a termination date of December 31 by extending the existing term of the
Employment Agreement.
AGREEMENT:
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
1. Amendment of Term of Agreement. Section 3(a) of the Employment
Agreement is hereby amended and restated in its entirety to read as follows:
"(a) This Agreement shall be for a period (the "Employment Period")
commencing on the Effective Date set forth in Section 2.02 of the
Merger Agreement and ending on December 31, 2006; provided, however,
that the Employment Period shall be automatically extended on
January 1, 2003 and on January 1 of each subsequent year (each an
"Annual Renewal Date") for a period ending five (5) years from each
Annual Renewal Date unless Bancorp or Executive shall give written
notice of nonrenewal to the other party at least ninety (90) days
prior to an Annual Renewal Date, in which event this Agreement shall
terminate at the end of the then existing Employment Period."
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2. Ratification of Agreement. Except as otherwise provided in this
First Amendment to Employment Agreement, all terms and conditions of the
Employment Agreement remain in full force and effect, and nothing contained in
this First Amendment to Employment Agreement shall be deemed to alter or amend
any provision of the Employment Agreement except as specifically provided
herein. References in the Employment Agreement to the "Agreement" shall be
deemed to be references to the Agreement as amended hereby.
3. Waiver. No provision of this First Amendment to Employment
Agreement may be modified, waived, or discharged unless such waiver,
modification, or discharge is agreed to in writing and signed by Executive and
an executive officer specifically designated by the Boards of Directors of
Bancorp and E&B. No waiver by any party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
First Amendment to Employment Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
4. Assignment. This First Amendment to Employment Agreement shall
not be assignable by any party, except by Bancorp and E&B to an affiliate of
Bancorp or to any successor in interest to their respective businesses.
5. Entire Agreement. This First Amendment to Employment Agreement
contains the entire agreement of the parties relating to the subject matter
hereof.
6. Successors; Binding Agreement.
(a) This First Amendment to Employment Agreement shall inure
to the benefit of and be binding on Bancorp and E&B and any of their successors
or permitted assigns.
(b) This First Amendment to Employment Agreement shall inure
to the benefit of and be enforceable by Executive's personal or legal
representatives, executors, administrators, heirs, distributees, devisees, and
legatees.
[THIS SPACE INTENTIONALLY BLANK]
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7. Applicable Law. This Agreement shall be governed by and construed
in accordance with the domestic, internal laws of the Commonwealth of
Pennsylvania, without regard to its conflicts of laws principles.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
FIRST LEESPORT BANCORP, INC.
By /s/ Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------------
Attest: /s/ Xxxxxxx X. Xxx
--------------------------------------
("Bancorp")
XXXXXX & XXXX, INC.
By /s/ Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------------
Attest: /s/ Xxxxxxx X. Xxx
--------------------------------------
("E&B")
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxx
("Executive")
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EXHIBIT A
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 17th day of September, 1998, among
FIRST LEESPORT BANCORP, INC. ("Bancorp"), a Pennsylvania business corporation
having a place of business at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxx,
XXXXXX & XXXX, INC. ("E&B"), a Pennsylvania corporation having a place of
business at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 and XXXXXXX X.
XXXXXXX ("Executive"), an individual residing at 00 Xxxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
WITNESSETH:
WHEREAS, Bancorp and E&B have entered into an Agreement and Plan of
Reorganization dated September 17, 1998 (the "Merger Agreement");
WHEREAS, The First National Bank of Leesport ("Bank") is a wholly
owned banking subsidiary of Bancorp;
WHEREAS, pursuant to the Merger Agreement, E&B will be a wholly
owned subsidiary of Bancorp on the Effective Date as set forth in Section 2.02
of the Agreement;
WHEREAS, E&B desires to employ Executive to serve in the capacity of
President and Chief Executive Officer of E&B on the terms and conditions set
forth herein;
WHEREAS, Executive desires to accept employment with E&B on the
terms and conditions set forth herein.
AGREEMENT:
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
1. Employment. E&B hereby employs Executive and Executive hereby
accepts employment with E&B, on the terms and conditions set forth in this
Agreement. It is expressly agreed that this Agreement will become null and void,
and the parties shall have no obligation or responsibility to each other, if the
Merger Agreement does not become effective.
2. Duties of Employee. Executive shall perform and discharge well
and faithfully such duties as an executive officer of E&B as may be assigned to
Executive from time to time by the Board of Directors of E&B. Executive shall be
employed as President and Chief Executive Officer of E&B, and shall hold such
other titles as may be given to him from time to time by the Board of Directors
of E&B. Executive shall devote his full time, attention and energies to the
business of E&B during the Employment Period (as defined in Section 3 of this
Agreement); provided, however, that this Section 2 shall not be construed as
preventing Executive from (a) investing Executive's personal assets in
enterprises that do not compete with Bancorp, Bank or E&B or (b) being involved
in any other activity with the prior approval of the Board of Directors of E&B.
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3. Term of Agreement.
(a) This Agreement shall be for a five (5) year period (the
"Employment Period") beginning on the Effective Date as
set forth in Section 2.02 of the Merger Agreement and
ending five (5) years later. The Employment Period shall
be automatically extended on the first anniversary date
of the Effective Date as set forth in the Merger
Agreement and on the same date of each subsequent year
(the "Annual Renewal Date") for a period ending five (5)
years from each Annual Renewal Date unless either party
shall give written notice of nonrenewal to the other
party at least ninety (90) days prior to an Annual
Renewal Date, in which event this Agreement shall
terminate at the end of the then existing Employment
Period.
(b) Notwithstanding the provisions of Section 3(a) of this
Agreement, this Agreement shall terminate automatically
for Cause (as defined herein) upon written notice from
the Board of Directors of E&B to Executive. As used in
this Agreement, "Cause" shall mean any of the following:
(i) Executive's conviction of or plea of guilty or
nolo contendere to a felony, a crime of falsehood
or a crime involving moral turpitude, or the
actual incarceration of Executive for a period of
at least thirty (30) days;
(ii) Executive's failure to follow the good faith
lawful instructions of the Board of Directors of
E&B with respect to its operations following
written notice of such instructions; or
(iii) Executive's failure to perform Executive's duties
to E&B (other than a failure resulting from
Executive's incapacity because of physical or
mental illness, as provided in subsection (d) of
this Section 3), after notice from E&B or Bancorp
and a failure to cure such violation within ten
(10) days of said notice, unless it is apparent
under the circumstances that Executive is unable
to cure such violation, which failure results in
injury to Bancorp, Bank or E&B, monetarily or
otherwise.
(iv) Executive's intentional violation of the
provisions of this Agreement; or
(v) dishonesty or gross negligence of the Executive in
the performance of his duties;
(vi) conduct on the part of the Executive which brings
public discredit to the Bancorp, Bank or E&B;
(vii) Executive's breach of fiduciary duty involving
personal profit; or
(viii) Executive's loss or non-renewal of insurance
license.
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(ix) Executive's removal or prohibition from being an
institutional-affiliated party by a final order of
an appropriate federal banking agency pursuant to
Section 8(e) of the Federal Deposit Insurance Act
or by the Pennsylvania Department of Banking
Commission pursuant to state law.
If this Agreement is terminated for Cause, Executive's rights under this
Agreement shall cease as of the effective date of such termination.
(c) Notwithstanding the provisions of Section 3(a) of this
Agreement, this Agreement shall terminate automatically
upon Executive's voluntary termination of employment
(other than in accordance with Section 5 of this
Agreement), retirement at Executive's election, or
Executive's death, and Executive's rights under this
Agreement shall cease as of the date of such voluntary
termination, retirement at Executive's election, or
death; provided, however, that if Executive dies after
Executive delivers a Notice of Termination (as defined
in Section 5(a) of this Agreement), the provisions of
Section 13(b) of this Agreement shall apply.
(d) Notwithstanding the provisions of Section 3(a) of this
Agreement, this Agreement shall terminate automatically
upon Executive's disability and Executive's rights under
this Agreement shall cease as of the date of such
termination; provided, however, that if Executive
becomes disabled after Executive delivers a Notice of
Termination (as defined in Section 5(a) of this
Agreement), Executive shall nevertheless be absolutely
entitled to receive all of the compensation and benefits
provided for in, and for the term set forth in, Section
6 of this Agreement. For purposes of this Agreement,
disability shall mean Executive's incapacitation by
accident, sickness or otherwise which renders Executive
mentally or physically incapable of performing the
services required of Executive for the entire period of
six (6) consecutive months.
(e) Executive agrees that in the event his employment under
this Agreement is terminated, Executive shall resign as
a director of E&B and Bancorp, or any affiliate or
subsidiary thereof, if he is then serving as a director
of any of such entities.
4. Employment Period Compensation.
(a) Salary. For services performed by Executive under this
Agreement, E&B shall pay Executive an Annual Base Salary
in the aggregate during the Employment Period at the
rate of Two Hundred Thirty Thousand ($230,000) Dollars
per year, payable at the same times as salaries are
payable to other executive employees of E&B. E&B may,
from time to time, increase Executive's Annual Base
Salary, and any and all such increases shall be deemed
to constitute amendments to this Section 4(a) to reflect
the increased amounts, effective as of the date
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established for such increases by the Board of Directors
of E&B or any committee of such Board in the resolutions
authorizing such increases.
(b) Commission. Executive shall receive scheduled commission
payments based on the formula as set forth in Exhibit A
hereto. It is strictly understood and agreed that any
commissions earned by Executive shall not be offset by
any salary payments received under subsection (a) of
this Section 4. In the event of termination of Executive
for any reason whatsoever, any commissions earned up to
the date of termination will be paid to Executive on the
same commission schedule. Notwithstanding the foregoing,
if it is determined by Bancorp or E&B, in their sole
discretion, that there are misrepresentations or other
material defects in an insurance transaction by
Executive which would disqualify the insurance
transaction, the Executive shall forfeit any and all
commissions earned on such insurance transaction.
(c) Bonus. For services performed by Executive under this
Agreement, Executive shall be entitled to receive a
bonus based upon the attainment of certain goals which
such goals will be agreed upon annually by the Executive
and the Board of Directors of E&B and Bancorp. The
payment of any such bonuses shall not reduce or
otherwise affect any other obligation of E&B to
Executive provided for in this Agreement.
(d) Vacations. During the term of this Agreement, Executive
shall be entitled to paid annual vacation in accordance
with the policies established for senior executives at
Bancorp. However, Executive shall not be entitled to
receive any additional compensation from E&B for failure
to take a vacation, nor shall Executive be able to
accumulate unused vacation time from one year to the
next, except to the extent authorized by the Board of
Directors of E&B.
(e) Automobile. During the term of this Agreement, E&B shall
provide Executive with exclusive use of an automobile
mutually agreed upon by Bank and E&B. E&B shall be
responsible and shall pay for all costs of insurance
coverage, repairs, maintenance and other operating and
incidental expenses, including license, fuel and oil.
E&B shall provide Executive with a replacement
automobile at approximately the time Executive's
automobile reaches three (3) years of age or 50,000
miles, whichever is first, and approximately every three
(3) years or 50,000 miles thereafter, upon the same
terms and conditions.
(f) Employee Benefit Plans. During the term of this
Agreement, Executive shall be entitled to participate in
and receive the benefits of any Employee Benefit Plan
currently in effect at E&B, until such time that the
Board of Directors of E&B authorize a change in such
benefits. Nothing paid to Executive under any plan or
arrangement presently in effect or made available in the
future shall be deemed to be in lieu of the salary
payable to Executive pursuant to Section 4(a) hereof.
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(g) 1999 Stock Options. Bancorp agrees to prepare and submit
to its shareholders, in connection with its 1999 Annual
Meeting of Shareholders, a stock option plan providing
for the grant of stock options to key employees of Bank
and E&B. Executive shall be granted stock options to
purchase such number of whole shares of the Common Stock
of Bancorp equal to the quotient of (x) $700,000 divided
by (y) the Closing Market Price of the Common Stock of
Bancorp as defined in Section 2.01(d) of the Merger
Agreement, effective upon the date of shareholder
approval of such plan, at an exercise price equal to the
fair market value of such shares on the date of grant.
Such options shall be subject to a five (5) year vesting
provision, with 1/5 of the total number of options
vesting on the first annual anniversary of your
employment with Bank and E&B and an additional 1/5 of
the total number of options vesting on each subsequent
annual anniversary date thereafter. Such options will
provide for a term of ten years. Notwithstanding the
foregoing, in the event of a Change in Control as
defined in Section 5(b) of this Agreement, the stock
options will automatically become fully vested.
5. Termination of Employment Following Change in Control.
(a) If a Change in Control (as defined in Section 5(b) of
this Agreement) shall occur and if thereafter at any
time during the term of this Agreement there shall be:
(i) any involuntary termination of Executive's
employment (other than for the reasons set forth
in Section 3(b) or 3(d) of this Agreement);
(ii) any reduction in Executive's title,
responsibilities, including reporting
responsibilities, or authority, including such
title, responsibilities or authority as such
title, responsibilities or authority may be
increased from time to time during the term of
this Agreement;
(iii) the assignment to Executive of duties inconsistent
with Executive's office on the date of the Change
in Control or as the same may be increased from
time to time after the Change in Control;
(iv) any reassignment of Executive to a location
greater than fifty (50) miles from the location of
Executive's office on the date of the Change in
Control;
(v) any reduction in Executive's Annual Base Salary in
effect on the date of the Change in Control or as
the same may be increased from time to time after
the Change in Control;
(vi) any failure to continue Executive's participation
in any of E&B's commission compensation or bonus
plans in which Executive
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participated at the time of the Change in Control
or any change or amendment to any provisions of
any of such plans which would materially decrease
the potential benefits to Executive under any of
such plans;
(vii) any failure to provide Executive with benefits at
least as favorable as those enjoyed by Executive
under any of E&B's retirement or pension, life
insurance, medical, health and accident,
disability or other employee plans in which
Executive participated at the time of the Change
in Control, or the taking of any action that would
materially reduce any of such benefits in effect
at the time of the Change in Control;
(viii) any requirement that Executive travel in
performance of his duties on behalf of E&B for a
significantly greater period of time during any
year than was required of Executive during the
year preceding the year in which the Change in
Control occurred; or
(ix) any sustained pattern of interruption or
disruption of Executive for matters substantially
unrelated to Executive's discharge of Executive's
duties on behalf of E&B.
then, at the option of Executive, exercisable by Executive within one hundred
twenty (120) days of the occurrence of any of the foregoing events, Executive
may resign from employment with E&B (or, if involuntarily terminated, give
notice of intention to collect benefits under this Agreement) by delivering a
notice in writing (the "Notice of Termination") to Bank and E&B and the
provisions of Section 6 of this Agreement shall apply.
(b) As used in this Agreement, "Change in Control" shall
mean the occurrence of any of the following:
(i) (A) a merger, consolidation or division involving
Bancorp, (B) a sale, exchange, transfer or other
disposition of substantially all of the assets of
Bancorp, or (C) a purchase by Bancorp of
substantially all of the assets of another entity,
unless (x) such merger, consolidation, division,
sale, exchange, transfer, purchase or disposition
is approved in advance by seventy percent (70%) or
more of the members of the Board of Directors of
Bancorp who are not interested in the transaction
and (y) a majority of the members of the Board of
Directors of the legal entity resulting from or
existing after any such transaction and of the
Board of Directors of such entity's parent
corporation, if any, are former members of the
Board of Directors of Bancorp; or
(ii) any other change in control of Bancorp similar in
effect to any of the foregoing.
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6. Rights in Event of Termination of Employment Following Change in
Control.
(a) In the event that Executive delivers a Notice of
Termination (as defined in Section 5(a) of this
Agreement) to Bancorp and E&B, Executive shall be
absolutely entitled to receive the compensation and
benefits set forth below:
(i) If, at the time of termination of Executive's
employment, a "Tax Change" (as defined in Section
6(a)(iii) of this Agreement) has also occurred,
E&B shall make, in the aggregate, a lump sum cash
payment to Executive no later than thirty (30)
days following the date of such termination in an
amount equal to and no greater than two [2.0]
times the Executive's Annual Base Salary, as
defined in subsection (a) of Section 4, in effect
on the date of termination of employment.
(ii) If, at the time of termination of Executive's
employment, a "Tax Change" has not occurred, E&B
shall make a lump sum cash payment to Executive no
later than thirty (30) days following the date of
such termination in an amount equal to and no
greater than two [2.0] times the Executive's
Annual Base Salary, as defined in subsection (a)
of Section 4, in effect on the date of termination
of employment.
(iii) For purposes of this Agreement, "Tax Change" means
a change (A) in the ownership or effective control
of Bancorp or (B) in the ownership of a
substantial portion of the assets of Bancorp,
determined pursuant to regulations promulgated
under Section 280G of the Code. Such term also
means any similar change with respect to Bank or
E&B or an affiliate, to the extent provided in
such regulations.
(iv) To the extent benefits become payable under
Section 6(a)(i) or Section 6(a)(ii) by reason of
Executive's termination of employment on or after
his attainment of age 621/2, the following amount,
if less than the amount calculated under the
relevant section, shall be paid within thirty (30)
days of such termination in lieu of the amount
otherwise payable.
(v) Notwithstanding the foregoing, if any portion of
the payment due pursuant to this Section 6 is
found to violate any of the proscriptions in
Section 359 of the Federal Deposit Insurance
Corporation Rules and Regulations, then E&B shall
not be obligated to make such payment found to be
violated.
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Percentage of Annual Base
If Termination Occurs Salary Payable
--------------------- -------------------------
On or after 62 1/2 but before age 63 200%
On or after 63 but before age 63 1/2 200%
On or after age 63 1/2 but before age 64 150%
On or after 64 but before age 64 1/2 100%
On or after age 64 1/2 but before age 65 50%
On or after age 65 0%
For purposes of this paragraph, the term "Annual Base Salary" shall mean the
Executive's annual salary, as defined in subsection (a) of Section 4, in effect
on the date of termination of employment.
(b) Executive shall not be required to mitigate the amount
of any payment provided for in this Section 6 by seeking
other employment or otherwise. The amount of payment or
the benefit provided for in this Section 6 shall not be
reduced by any compensation earned by Executive as the
result of employment by another employer or by reason of
Executive's receipt of or right to receive any
retirement or other benefits after the date of
termination of employment or otherwise.
7. Rights in Event of Termination of Employment Absent Change in
Control.
(a) In the event that Executive's employment is
involuntarily terminated by E&B without Cause and no
Change in Control shall have occurred at the date of
such termination, E&B shall pay (or cause to be paid),
in the aggregate, to Executive in cash, in an amount
equal to the Executive's Annual Base Salary in effect on
the date of termination for the remainder of the then
existing Employment Term, paid at the same intervals as
the salary is payable under Subsection (a) of Section 4.
Notwithstanding the preceding sentence, in the event
that the payment described in the preceding sentence,
when added to all other amounts or benefits provided to
or on behalf of the Executive in connection with his
termination of employment, would result in the
imposition of an excise tax under Code Section 4999,
such sum would be retroactively (if necessary) reduced
to the extent necessary to avoid such imposition. Upon
written notice to Executive, together with calculations
of E&B's independent auditors, Executive shall remit to
E&B the amount of the reduction plus such interest as
may be necessary to avoid the imposition of such excise
tax.
(b) Executive shall not be required to mitigate the amount
of any payment provided for in this Section 7 by seeking
other employment or
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otherwise. The amount of payment or the benefit provided
for in this Section 7 shall not be reduced by any
compensation earned by Executive as the result of
employment by another employer or by reason of
Executive's receipt of or right to receive any
retirement or other benefits after the date of
termination of employment or otherwise.
(c) To the extent benefits become payable under this Section
7 by reason of termination of Executive's employment on
or after his attainment of age 621/2 , the amounts set
forth in Section 6(a)(iv), if less than the amounts
payable under this Section 7, shall be paid within
thirty (30) days of such termination in lieu of the
amount otherwise payable under this Section 7.
(d) The amounts payable pursuant to this Section 7 shall
constitute Executive's sole and exclusive remedy in the
event of involuntary termination of Executive's
employment by E&B in the absence of a Change in Control.
8. Covenant Not to Compete.
(a) Executive hereby acknowledges and recognizes the highly
competitive nature of the business of Bancorp, Bank and
E&B and accordingly agrees that, during and for the
applicable period set forth in Section 8(c) hereof,
Executive shall 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 (1) the banking (including bank holding
company) or financial services industry, or (2)
the insurance agency or brokerage industry, or (3)
any other activity in which Bancorp, Bank or E&B
or any of its subsidiaries is engaged during the
Employment Period, 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 Bancorp, Bank
or E&B 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"); or
(ii) provide financial or other assistance to any
person, firm, corporation, or enterprise engaged
in (1) the banking (including bank holding
company) or financial services industry, or (2)
the insurance agency or brokerage industry, or (3)
any other activity in which Bank or E&B or any of
their subsidiaries are engaged during the
Employment Period, in the Non-Competition Area; or
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(iii) solicit current and former customers of Bancorp,
Bank or E&B in the Non-Competition Area.
(b) It is expressly understood and agreed that, although
Executive and Bancorp, Bank and E&B consider the
restrictions contained in Section 8(a) hereof reasonable
for the purpose of preserving for Bancorp, Bank and E&B
and their subsidiaries their good will 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 Section
8(a) hereof is an unreasonable or otherwise
unenforceable restriction against Executive, the
provisions of Section 8(a) hereof shall not be rendered
void but shall 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 8 shall be applicable
commencing on the date of this Agreement and ending on
one of the following dates, as applicable:
(i) if Executive's employment terminates in accordance
with the provisions of Section 3 (other than
Section 3(b) relating to termination for Cause),
the same date as the ending date of the then
existing Employment Period;
(ii) if Executive's employment terminates in accordance
with the provisions of Section 3(b) of this
Agreement (relating to termination for Cause), the
second anniversary date of the effective date of
termination of employment; or
(iii) if the Executive voluntarily terminates his
employment in accordance with the provisions of
Section 5 hereof, the second anniversary date of
the effective date of termination of employment.
(iv) If the Executive's employment is involuntarily
terminated in accordance with the provisions of
Section 7, the same date as the ending date of the
then existing Employment Period.
9. Unauthorized Disclosure. 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 Bancorp, Bank and E&B or a person
authorized thereby, knowingly disclose to any person, other than an employee of
the Bancorp and E&B or 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 E&B, any material confidential information obtained by him while
in the employ of E&B with respect to any of Bancorp's, Bank's and E&B'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 damaging to Bancorp, Bank or E&B; provided, however, that
confidential information shall not include any information known generally to
the
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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 engaged
in the same business of a business similar to that conducted by Bancorp, Bank or
E&B or any information that must be disclosed as required by law.
10. Notices. Except as otherwise provided in this Agreement, any
notice required or permitted to be given under this Agreement shall be deemed
properly given if in writing and if mailed by registered or certified mail,
postage prepaid with return receipt requested, to Executive's residence, in the
case of notices to Executive, and to the principal executive offices of Bancorp
and E&B, in the case of notices to Bancorp and E&B.
11. 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 Executive and an executive officer specifically designated
by the Board of Directors of E&B. 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 similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
12. Assignment. This Agreement shall not be assignable by any party,
except by Bancorp, Bank and E&B to any successor in interest to their respective
businesses.
13. Entire Agreement. This Agreement contains the entire agreement
of the parties relating to the subject matter of this Agreement.
14. Successors, Binding Agreement.
(a) Bancorp, Bank and E&B will require any successor
(whether direct or indirect, by purchase, merger,
consolidation, or otherwise) to all or substantially all
of the businesses and/or assets of Bancorp, Bank and E&B
to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that Bancorp,
Bank and E&B would be required to perform it if no such
succession had taken place. Failure by Bancorp and E&B
to obtain such assumption and agreement prior to the
effectiveness of any such succession shall constitute a
breach of this Agreement and the provisions of Section 3
of this Agreement shall apply. As used in this
Agreement, "Bancorp", "Bank" and "E&B" shall mean
Bancorp, Bank and E&B as defined previously and any
successor to their respective businesses and/or assets
as aforesaid which assumes and agrees to perform this
Agreement by operation of law or otherwise.
(b) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal
representatives, executors, administrators, heirs,
distributees, devisees and legatees. If Executive should
die after a Notice of Termination is delivered by
Executive, or following termination of Executive's
employment without Cause, and any amounts would be
payable to Executive under this Agreement if Cause, and
any amounts would be payable to Executive under this
Agreement
14
if Executive had continued to live, all such amounts
shall be paid in accordance with the terms of this
Agreement to Executive's devisee, legatee, or other
designee, or, if there is no such designee, to
Executive's estate.
15. Damages for Breach of Contract. In the event of a breach of this
Agreement by either the Bancorp, E&B or 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. In the event any dispute
arises regarding this Agreement, each party shall bear its own attorney's fees
and costs.
16. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
17. Applicable Law. This Agreement shall be governed by and
construed in accordance with the domestic, internal laws of the Commonwealth of
Pennsylvania, without regard to its conflicts of laws principles.
18. Headings. The section headings of this Agreement are for
convenience only and shall not control or affect the meaning or construction or
limit the scope or intent of any of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
ATTEST: FIRST LEESPORT BANCORP, INC.
/s/ Xxxxxxx X. Xxx By /s/ Xxxxxxx X. Xxxxxxx, Xx.
----------------------------------- ---------------------------------------
"Bancorp"
XXXXXX & XXXX, INC.
/s/ Xxxxxxx X. Xxxxxx By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------- ---------------------------------------
"E&B"
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
"Executive"
15
