Exhibit 10(k)
CHANGE OF CONTROL AGREEMENT
FOR
XXXXXXX X. XXXXXX
THIS CHANGE OF CONTROL AGREEMENT (this "Agreement"), made as of December 17,
2004, is by and among DNB FINANCIAL CORPORATION ("Holding Company"), DNB FIRST,
NATIONAL ASSOCIATION, a national banking association with principal offices at 0
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000 ("Bank") (Holding Company and Bank are
sometimes referred to individually and collectively herein as the "Company") and
XXXXXXX X. XXXXXX, an individual residing in Xxxxxxx County, Pennsylvania
("Executive").
Background
A. Company and Executive wish to enter into an agreement pursuant to which
Company wishes to secure the future services of Executive by providing Executive
the severance payments provided in this Agreement as additional incentive to
induce Executive to devote Executive's time and attention to the interests and
affairs of the Company.
B. Executive is willing to enter into this Agreement upon the terms and
conditions herein set forth.
C. The Boards of Directors of the Holding Company and the Bank have each
approved this Agreement and it is intended to be maintained as part of the
official records of the Holding Company and the Bank.
NOW THEREFORE, in consideration of the mutual promises and agreements set forth
herein, the parties agree as follows:
1. Employment. Except strictly to such extent (if any) as may be provided in
another agreement between Holding Company or Bank and Executive, Executive shall
remain an employee at will of the Company hereafter. This Agreement is not an
employment agreement, but shall only be interpreted as governing the payment of
severance, which may be due to Executive upon termination of Executive's
employment with Company under the specific circumstances described in this
Agreement. No provision of this Agreement shall be interpreted to derogate from
the power of the Company or its Board of Directors to terminate the employment
of the Executive, subject nevertheless to the terms of this Agreement.
2. Compensation. The compensation to be paid by Company to Executive from time
to time, including any fringe benefits or other employee benefits, shall not be
governed by this Agreement. This Agreement shall not be deemed to affect the
terms of any stock options, employee benefits or other agreements between the
Company and Executive.
3. Severance Payments upon Termination of Employment After a "Change in
Control". This Agreement does not govern any termination of Executive's
employment with Company which occurs prior to a "change in control" as defined
in subsection (e) of this Section. No inference shall be drawn from any
provision of this Section 3 concerning the rights and
obligations of the parties in connection with a termination of Executive's
employment prior to such a "change in control".
(a) Termination by Company for Cause or Not for Cause. If Executive's employment
is terminated by Company for "cause" (as defined in subsection (c) of this
Section) at any time, or with or without "cause" prior to a "change in control",
Executive shall have no right to any severance or other payments under this
Agreement due to such termination. If Executive is terminated by Company or
Holding Company after a "change in control" (as defined in subsection (e) of
this Section) other than for "cause", Executive's right to severance payments
under this Agreement shall be as set forth in subsection (f) of this Section. A
termination by Company of Executive's employment with Bank only or Holding
Company only shall be deemed a termination for purposes of this Agreement, and
Executive's right to severance payments (if any) hereunder, shall be determined
as if such termination were a termination from employment with Company entirely.
(b) Termination by Executive for Good Reason or Not for Good Reason. If
Executive terminates Executive's employment with Holding Company and Bank prior
to a change in control, or without "good reason" (as defined in subsection (d)
of this Section) at any time, Executive shall have no right to any severance or
other payments under this Agreement due to such termination. If Executive
terminates Executive's employment with Holding Company and Bank for "good
reason" after a "change in control" (as defined in subsection (e) of this
Section), Executive's right to severance payments under this Agreement shall be
as set forth in subsection (f) of this Section.
(c) Definition of "Cause". For the purpose of this Agreement, termination for
"cause" shall mean termination for personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, conviction of a
felony, suspension or removal from office or prohibition from participation in
the conduct of Holding Company's or Bank's affairs pursuant to a notice or other
action by any Regulatory Agency, or willful violation of any law, rule or
regulation or final cease-and-desist order which in the reasonable judgment of
the Board of Directors of the Company will probably cause substantial economic
damages to the Company, willful or intentional breach or neglect by Executive of
his duties, or material breach of any material provision of this Agreement. For
purposes of this paragraph, no act, or failure to act on Executive's part shall
be considered "willful" unless done, or omitted to be done, by him without good
faith and without reasonable belief that this action or omission was in the best
interest of Company; provided that any act or omission to act by Executive in
reliance upon an approving opinion of counsel to the Company or counsel to the
Executive shall not be deemed to be willful. The terms "incompetence" and
"misconduct" shall be defined with reference to standards generally prevailing
in the banking industry. In determining incompetence and misconduct, Company
shall have the burden of proof with regard to the acts or omission of Executive
and the standards prevailing in the banking industry.
(d) Definition of "Good Reason". For purposes of this Agreement, Executive shall
have "good reason" for terminating his employment with Holding Company and Bank
if Executive terminates such employment within two (2) years after the
occurrence of any one or more of the following events (a "Triggering Event")
without Executive's express written consent, but only if the Triggering Event
occurs within two (2) years after a "change in control" (as defined in
subsection (e) of this Section) of Bank or Holding Company: (i) the assignment
to Executive of any duties inconsistent with Executive's positions, duties,
responsibilities, titles or offices with Bank or Holding Company as in effect
immediately prior to a change in control of Bank or
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Holding Company, (ii) any removal of Executive from, or any failure to re-elect
Executive to, any of such positions, except in connection with a termination or
suspension of employment for cause, disability, death or retirement, (iii) a
reduction by Holding Company or Bank in Executive's base annual salary as in
effect immediately prior to a change in control or as the same may be increased
from time to time thereafter, or the failure to grant increases in the
Executive's base annual salary on a basis at least substantially comparable to
the lowest increase granted to other officers of the Company having the title of
senior vice president or above, or (iv) any purported termination of Executive's
employment with Bank or Holding Company when "cause" (as defined in this
Agreement) for such termination does not exist.
(e) Definition of "Change in Control". For purposes of this Agreement, a "change
in control" of Company or Bank shall mean any one or more of the following:
(1) a change in control of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934 (the "Exchange Act")(or any successor provision)
as it may be amended from time to time;
(2) any "persons" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act in effect on the date first written above), other than Company or
Bank or any "person" who on the date hereof is a director of officer of Company
or Bank, is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of Company or Bank
representing 25% or more of the combined voting power of Company's or Bank's
then outstanding securities; or
(3) during any period of two (2) consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of Company or Bank
cease for any reason to constitute at least a majority thereof, unless the
election of each director who was not a director at the beginning of such period
has been approved in advance by directors representing at least two-thirds of
the directors then in office who were directors at the beginning of the period.
(4) the signing of a letter of intent or a formal acquisition or merger
agreement between the Holding Company or Bank, of the one part, and a third
party which contemplates a transaction which would result in a "change of
control" under paragraphs (1), (2) or (3) of this subsection (f), but, as to any
Triggering Event, only if such letter of intent or agreement, or the transaction
contemplated thereby, has not been canceled or terminated at the time the
occurrence of the Triggering Event in question.
(f) Severance. If Executive is entitled to severance payments under subsection
(a) or (b) of this Section, and if Executive shall have signed a release or
releases as more fully described in Section 4 of this Agreement, Company shall
pay as severance to Executive the following:
(I) Base Severance. An amount equal to: (A) the annual base salary paid to the
Executive and includible in the Executive's gross income for federal income tax
purposes during the year in which the date of termination occurs by Company and
any of its subsidiaries subject to United States income tax; multiplied by (B)
2.99. Such payment shall be made in a lump sum within one (1) calendar week
following the date of termination, subject to withholding by the Company as
required by applicable law and regulations. Notwithstanding any provision of
this Agreement or any other agreement of the parties, if the severance payment
or payments under this Agreement, either along or together with other payments
which the Executive has the right
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receive from the Company, would constitute a "parachute payment" (as defined in
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") or
any successor provision, such lump sum severance payment shall be reduced to the
largest amount as will result in no portion of the lump sum severance payment
under this Agreement being subject to the excise tax imposed by Section 4999 of
the Code.
(II) Medical/Health Benefits. For a period of eighteen (18) months from the date
of termination of the Executive's employment with the Company, the Company shall
continue to pay for Executive's health insurance, HMO or other similar medical
provider benefits (excluding any disability plans or benefits) on the same terms
and conditions available to other employees from time to time. Thereafter, if
the Executive chooses to continue such medical/health benefits as provided under
the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), Executive must do
so at Executive's own expense. If, at any time after the termination of
Executive's employment with the Company, Executive becomes covered for
medical/health benefits on any terms with a new employer, the Company shall
thereafter have no obligation to pay for any benefits or coverage and the
Company's COBRA obligations shall terminate to the extent permitted by COBRA.
Executive agrees to immediately notify Company, in writing, upon Executive's
acceptance of new employment which provides medical/health benefits for which
Executive is eligible.
(g) Any termination of Executive's employment by Company or by Executive shall
be communicated by a dated, written notice, signed by the party giving the
notice, which shall (A) indicate the specific termination provision in this
Agreement relied upon; (B) set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated; (C) specify the effective date of
termination.
(h) All obligations under this Agreement are subject to termination by any bank
regulatory agency having jurisdiction over Holding Company or Bank ("Regulatory
Agency") in accordance with any applicable provisions of law or regulations
granting such authority, but rights of the Executive to compensation earned as
of the date of termination shall not be affected.
(i) Executive shall not be required to mitigate the amount of any payment
provided for in this Agreement by seeking other employment or otherwise. The
severance payments provided for in this Agreement shall not be reduced by any
compensation or other payments received by Executive after the date of
termination of Executive's employment from any source.
4. Execution of Release Required. Executive agrees that, as a precondition to
receiving the payments provided for in this Agreement, Executive shall have
executed and delivered to Holding Company and Bank a release or releases, in
form satisfactory to Holding Company and Bank, releasing all claims which
Executive may then have against Holding Company or Bank, including without
limitation any claims related to employment, termination of employment,
discrimination, harassment, compensation or benefits, but excluding any claims
for payments due or to become due under this Agreement.
5. Payment Obligations Absolute. Provided that the preconditions for payment set
forth in this Agreement are fully satisfied, Company's obligation to pay
Executive the severance payments provided herein shall be absolute and
unconditional and shall not be affected by any circumstances, including, without
limitation, any set-off counter claim, recoupment, defense or
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other right which Company may have against Executive. All amounts payable by
Company hereunder shall be paid without notice or demand.
6. Continuing Obligations. Executive shall retain in confidence any confidential
information known to him concerning Company and its business so long as such
information is not publicly disclosed.
7. Amendments. No amendments to this Agreement shall be binding unless in a
writing, signed by both parties, which states expressly that it amends this
Agreement.
8. Notices. Notices under this Agreement shall be deemed sufficient and
effective if (i) in writing and (ii) either (A) when delivered in person or by
facsimile, telecopier, telegraph or other electronic means capable of being
embodied in written form or (B) forty-eight (48) hours after deposit thereof in
the U.S. mails by certified or registered mail, return receipt requested,
postage prepaid, addressed to each party at such party's address first set forth
above and, in the case of Company, to the attention of the Chairman of the
Board, or to such other notice address as the party to be notified may have
designated by written notice to the sending party.
9. Prior Agreements. There are no other agreements between Company and Executive
regarding Executive's employment. This Agreement is the entire agreement of the
parties with respect to its subject matter and supersedes any and all prior or
contemporaneous discussions, representations, understandings or agreements
regarding its subject matter.
10. Assigns and Successors. The rights and obligations of Company under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of Company and Executive, provided, however, that Executive shall
not assign or anticipate any of his rights hereunder, whether by operation of
law or otherwise. For purposes of this Agreement, "Company" shall also refer to
any successor to Holding Company or Bank, whether such succession occurs by
merger, consolidation, purchase and assumption, sale of assets or otherwise.
11. Executive's Acknowledgment of Terms. Executive acknowledges that he has read
this Agreement fully and carefully, understands its terms and that it has been
entered into by Executive voluntarily. Executive acknowledges that any payments
to be made hereunder will constitute additional compensation to Executive.
Executive further acknowledges that Executive has had sufficient opportunity to
consider this Agreement and discuss it with Executive's own advisors, including
Executive's attorney and accountants. Executive has been informed that Executive
has the right to consider this Agreement for a period of at least twenty one
(21) days prior to entering into it. Executive acknowledges that Executive has
taken sufficient time to consider this Agreement before signing it. Executive
also acknowledges that Executive has the right to revoke this Agreement for a
period of seven (7) days following this Agreement's execution by giving written
notice of revocation to Company.
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IN WITNESS WHEREOF, the parties hereto have caused the due execution of this
Agreement as of the date first set forth above. Attest: Holding Company:
DNB FINANCIAL CORPORATION
/s/ Xxxxxx X. Xxxxxxxxx By: /s/_William X. Xxxx
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Secretary President
Attest: Bank:
DNB FIRST, NATIONAL ASSOCIATION
/s/ Xxxxxx X. Xxxxxxxxx By: /s/_William X. Xxxx
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Secretary President
Executive:
/s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
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