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Exhibit 10.7
EMPLOYMENT AGREEMENT - XXXX X. XXXXXX
(PRESTIGE BANK)
EMPLOYMENT AGREEMENT (the "Agreement"), dated this 21st day of March,
2001 and effective as of December 28, 2000 (the "Effective Date"), between
PRESTIGE BANK, A FEDERAL SAVINGS BANK, a federally chartered capital stock
savings bank (the "Employer") and XXXX X. XXXXXX (the "Executive").
WITNESSETH:
WHEREAS, the Employer desires to employ the services of Executive as
its Chief Executive Officer on the terms and conditions set forth herein; and
WHEREAS, the Executive desires to be employed by the Employer in such
capacity.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereby agree as follows:
1. Definitions. The following words and terms shall have the meanings
set forth below for the purposes of this Agreement:
(a) Base Salary. "Base Salary" shall have the meaning set
forth in Section 3(b) hereof.
(b) Cause. Termination of the Executive's employment for
"Cause" shall mean termination because of personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of any law, rule
or regulation (other than traffic violations or similar offenses) or final
cease-and-desist order or material breach of any provision of this Agreement.
(c) Code. "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(d) Date of Termination. "Date of Termination" shall mean (i)
if the Executive's employment is terminated for Cause or for Disability, the
date specified in the Notice of Termination, (ii) if the Executive's employment
is terminated for any other reason other than death of the Executive, the date
on which a Notice of Termination is given or as specified in such Notice, and
(iii) if the Executive's employment is terminated due to the Executive's death,
the date of death.
(e) Disability. Termination by the Employer of the Executive's
employment based on "Disability" shall mean termination because of any physical
or mental impairment which qualifies the Executive for disability benefits under
the applicable long-term disability plan maintained by the Employer or any
affiliate thereof or, if no such plan applies, which would qualify the Executive
for disability benefits under the Federal Social Security System.
(f) IRS. IRS shall mean the Internal Revenue Service.
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(g) Notice of Termination. Any purported termination of the
Executive's employment by the Employer for any reason other than death of the
Executive, including without limitation for Cause, Disability or Retirement, or
by the Executive for any reason, shall be communicated by written "Notice of
Termination" to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a dated notice which (i) indicates the
specific termination provision in this Agreement relied upon; (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive's employment under the provision so indicated; (iii)
specifies a Date of Termination, which shall be not less than thirty (30) nor
more than ninety (90) days after such Notice of Termination is given, except in
the case of the Employer's termination of Executive's employment for Cause in
which case the Date of Termination shall be immediate; and (iv) is given in the
manner specified in Section 10 hereof.
(h) Retirement. Termination of the Executive's employment
based on "Retirement" shall mean voluntary termination by the Executive in
accordance with the Employer's retirement policies, including early retirement,
generally applicable to their salaried employees.
2. Term of Employment.
(a) The Employer, effective the date of this Agreement, hereby
employs the Executive as Chief Executive Officer and Executive hereby accepts
said employment and agrees to render such services to the Employer on the terms
and conditions set forth in this Agreement. The term of employment under this
Agreement shall be for two (2) years, commencing on the Effective Date and
ending two years after the Effective Date.
(b) During the term of this Agreement, the Executive shall
perform such services for the Employer as may from time to time be assigned to
the Executive by the Employer's Board of Directors, provided, however, that such
services are consistent with the Executive's title of Chief Executive Officer.
3. Compensation and Benefits.
(a) Anything contained herein to the contrary notwithstanding,
the parties acknowledge and agree that, although Executive has employment
agreements with both Employer and the Corporation, it is the intention of the
parties that there be no duplication of benefits and compensation so long as
Executive is employed by both Employer and the Corporation such that any
compensation and benefits actually provided by the Corporation to the Executive
shall be set off against any obligation of the Employer to provide the same
pursuant thereto, and any compensation and benefits actually provided by the
Employer to Executive shall be set off against any obligation of the Corporation
to provide the same pursuant to its employment agreement with Executive.
(b) Employer shall compensate and pay Executive for
Executive's services during the term of this Agreement at a base salary of
$120,000.00 per year, payable at a monthly rate of $10,000.00, which may be
increased from time to time in such amounts as may be determined by the Board of
Directors of the Employer ("Base Salary"), which may not be decreased without
Executive's consent.
(c) During the term of this Agreement, Executive shall be
entitled to participate in and receive the benefits of any pension or other
retirement benefit plan, profit sharing, stock option, employee stock ownership,
disability plan,
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healthcare plans and all other plans, benefits and privileges given to employees
and executives of the Employer, to the extent commensurate with Executive's then
duties and responsibilities of the Executive's office, as fixed by the Board of
Directors of the Employer. It is expressly understood and agreed that Employer
will pay for full family health benefits for Executive, his spouse and children.
The Employer shall not make any changes in such plans, benefits or privileges
which would adversely affect Executive's rights or benefits thereunder, unless
such change occurs pursuant to a program applicable to all Executive officers of
the Employer. 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 3(a) hereof.
(d) During the term of this Agreement, Executive shall be
entitled to three (3) weeks paid vacation per annum in accordance with the
policies as established from time to time by the Board of Directors of the
Employer. Executive shall be entitled to receive additional compensation from
the Employer for unused vacation within the policies as established by the Board
of Directors of the Employer from time to time. Executive shall not be able to
accumulate unused vacation time from one year to the next, except to the extent
authorized by the Board of Directors of the Employer.
(e) If the Employer has been substantially released from the
terms of that certain Supervisory Agreement between the Employer and the Office
of Thrift Supervision dated as of September 20, 2000, not later than March 31,
2001, Employer shall pay Executive a one-time bonus of $10,000.00.
(f) Employer shall pay Executive an automobile allowance of
$250.00 per month during the term of this Agreement.
(g) Employer shall pay the balance of Executive's tuition for
attendance at the Xxxxxxx School of Business and Penn Engineering in pursuit of
an executive masters of technology and management degree. If Executive's
employment is terminated for Cause or if Executive terminates his employment
other than pursuant to Section 5(c)(ii) hereof, Executive shall reimburse
Employer for all amounts paid for tuition. Such repayment shall be made in 36
equal monthly installments commencing on the first day of the calendar month
following the Date of Termination.
(h) Employer shall pay for the reasonable moving expenses of
Executive, his family, and the contents of Executive's home, to the Pittsburgh
area.
4. Expenses. Employer shall reimburse Executive or otherwise provide
for or pay for all reasonable expenses incurred by Executive in furtherance of,
or in connection with the business of the Employer, including, but not by way of
limitation, traveling expenses and all reasonable entertainment expenses
(whether incurred at the Executive's residence, while traveling or otherwise),
and excluding automobile expenses, subject to such reasonable documentation and
other limitations as may be established by the Board of Directors of the
Employer. If such expenses are paid in the first instance by Executive, the
Employer shall reimburse the Executive therefor, subject to such reasonable
documentation and other limitations as may be established by the Board of
Directors of the Employer.
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5. Termination.
(a) The Employer shall have the right, at any time, upon prior
Notice of Termination, to terminate the Executive's employment hereunder for any
reason, including without limitation termination for Cause, Disability or
Retirement, and Executive shall have the right, upon prior Notice of
Termination, to terminate his employment hereunder for any reason. The
Executive's employment hereunder will terminate automatically, without any
Notice of Termination, upon the earlier of the death of the Executive or the
date which is two years from the Effective Date.
(b) In the event that Executive's employment is terminated by
the Employer for Cause, Disability or Retirement or in the event of the
Executive's death, Executive shall have no right pursuant to this Agreement to
compensation or other benefits for any period after the applicable Date of
Termination.
(c) In the event that (i) Executive's employment is terminated
by the Employer without Cause, or (ii) such employment is terminated by the
Executive due to a material breach of this Agreement by the Employer, which
breach has not been cured within thirty (30) days after a written notice of
non-compliance has been given by the Executive to the Employer, then as
severance benefits the Employer shall, subject to the provisions of Sections 6
and 7 hereof, if applicable:
(1) continue to pay to the Executive over the
remaining term of this Agreement, an amount equal to the
Executive's annual Base Salary in effect on the Date of
Termination, to be paid in equal installments in accordance
with the Employer's customary payroll practices beginning on
the first payroll payment date following the Date of
Termination and continuing throughout the remaining term of
this Agreement, provided however, that such payments shall
cease upon the death of Executive; and
(2) maintain and provide for a period ending at the
earlier of (i) the expiration of the remaining term of
employment pursuant hereto prior to the Notice of Termination
or (ii) the date of the Executive's full-time employment by
another employer (provided that the Executive is entitled
under the terms of such employment to benefits substantially
similar to those described in this subparagraph (2)), at no
cost to the Executive, the Executive's continued participation
in all group insurance, life insurance, health and accident,
disability and other employee benefit plans, programs and
arrangements in which the Executive was entitled to
participate immediately prior to the Date of Termination
(other than stock option and restricted stock plans of the
Employer), provided that, in the event that the Executive's
participation in any plan, program or arrangement as provided
in this subparagraph (2) is barred, or during such period any
such plan, program or arrangement is discontinued or the
benefits thereunder are materially reduced, the Employer shall
arrange to provide the Executive with benefits substantially
similar to those which the Executive was entitled to receive
under such plans, programs and arrangements immediately prior
to the Date of Termination.
(3) continue to pay the balance of the tuition
payments described in Section 3(f) hereof.
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(4) notwithstanding the foregoing, Executive shall
not be entitled to severance benefits under this Subsection
(c) if Executive remains employed by the Corporation.
(d) The parties acknowledge and agree that although Executive
has employment agreements with both Employer and the Corporation, it is the
intention of the parties that there be no duplication of benefits payable under
this Section 5 in the event the Executive's employment is terminated by both the
Employer and the Corporation. It is understood that the severance benefits to be
paid to Executive pursuant to this Section 5 will be paid or provided solely by
Employer unless otherwise agreed to by the Employer and the Corporation. The
Employer and the Corporation have entered into a reimbursement agreement
pursuant to which the Employer will be reimbursed by the Corporation in whole or
in part in such event.
(e) In the event that Executive's employment with the
Corporation is terminated and Executive remains employed pursuant to this
Agreement, Employer shall provide and be solely responsible for all compensation
and benefits enjoyed hereunder immediately prior to termination of employment
with the Corporation.
6. Limitation of Benefits under Certain Circumstances. If the payments
and benefits pursuant to Section 5 hereof, either alone or together with other
payments and benefits which Executive has the right to receive from the
Employer, would constitute a "parachute payment" under Section 280G of the Code,
the payments and benefits pursuant to Section 5 hereof shall be reduced, in the
manner determined by the Executive, by the amount, if any, which is the minimum
necessary to result in no portion of the payments and benefits under Section 5
being non-deductible to the Employer pursuant to Section 280G of the Code and
subject to the excise tax imposed under Section 4999 of the Code. The
determination of any reduction in the payments and benefits to be made pursuant
to Section 5 shall be based upon the opinion of independent tax counsel selected
by the Employer's independent public accountants and paid by the Employer. Such
counsel shall be reasonably acceptable to the Employer and the Executive; shall
promptly prepare the foregoing opinion, but in no event later than thirty (30)
days from the Date of Termination; and may use such actuaries as such counsel
deems necessary or advisable for those purposes. In the event that the Employer
and/or the Executive do not agree with the opinion of such counsel, (i) the
Employer shall pay to the Executive the maximum amount of payments and benefits
pursuant to Section 5, provided that the Executive delivers to the Employer an
opinion of counsel, as selected by the Executive, which such opinion indicates
that there is a high probability that the application of Sections 280G and 4999
of the Code do not result in any of such payments and benefits being
non-deductible to the Employer and subject to the imposition of the excise tax
imposed under Section 4999 of the Code and (ii) the Employer may request, and
Executive shall have the right to demand that the Employer request, a ruling
from the IRS as to whether the disputed payments and benefits pursuant to
Section 5 hereof have such consequences. Any such request for a ruling from the
IRS shall be promptly prepared and filed by the Employer, but in no event later
than thirty (30) days from the date of the opinion of counsel referred to above,
and shall be subject to Executive's approval prior to filing, which shall not be
unreasonably withheld. The Employer and Executive agree to be bound by any
ruling received from the IRS and to make appropriate payments to each other to
reflect any such rulings, together with interest at the applicable federal rate
provided for in Section 7872(f)(2) of the Code. Nothing contained herein shall
result in a reduction of any payments or benefits to which the Executive may be
entitled upon termination of employment under any circumstances other than as
specified in this Section 6, or a reduction in the payments and benefits
specified in Section 5 below zero.
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7. No Mitigation; Exclusivity of Benefits.
(a) The Executive shall not be required to mitigate the amount
of any benefits hereunder by seeking other employment or otherwise, nor shall
the amount of any such benefits be reduced by any compensation earned by the
Executive as a result of employment by another employer after the Date of
Termination or otherwise.
(b) The specific arrangements referred to herein are not
intended to exclude any other benefits which may be available to the Executive
upon a termination of employment with the Employer pursuant to employee benefit
plans of the Employer or otherwise.
8. Withholding. All payments required to be made by the Employer
hereunder to the Executive shall be subject to the withholding of such amounts,
if any, relating to tax and other payroll deductions as the Employer may
reasonably determine should be withheld pursuant to any applicable law or
regulation.
9. Assignability. The Employer may assign this Agreement and its rights
and obligations hereunder in whole, but not in part, to any corporation, bank or
other entity with or into which the Employer may hereafter merge or consolidate
or to which the Employer may transfer all or substantially all of its assets, if
in any such case said corporation, bank or other entity shall by operation of
law or expressly in writing assume all obligations of the Employer hereunder as
fully as if it had been originally made a party hereto, but may not otherwise
assign this Agreement or its rights and obligations hereunder. The Executive may
not assign or transfer this Agreement or any rights or obligations hereunder.
10. Notice. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered either personally, by telegraph,
by facsimile transmission (with a confirming copy by mail on the day of
transmission), by overnight courier or by certified or registered mail, postage
prepaid, return receipt requested, addressed to the respective addresses set
forth below:
To the Employer: Secretary
Prestige Bank, A Federal Savings Bank
000 Xxx Xxxxxxxx Xxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxxxx 00000
To the Executive: Xxxx X. Xxxxxx
Prestige Bank
000 Xxx Xxxxxxxx Xxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxxxx 00000
11. Amendment; Waiver. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and such officer or officers as may be
specifically designated by the Board of Directors of the Employer to sign on its
behalf. No waiver by any party hereto at any time of any breach by any other
party hereto of, or compliance with, any condition or provision of this
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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.
12. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United States
where applicable and otherwise by the substantive laws of the Commonwealth of
Pennsylvania.
13. Nature of Obligations. Nothing contained herein shall create or
require the Employer to create a trust of any kind to fund any benefits which
may be payable hereunder, and to the extent that the Executive acquires a right
to receive benefits from the Employer hereunder, such right shall be no greater
than the right of any unsecured general creditor of the Employer.
14. Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. Regulatory Provisions.
(a) Notwithstanding any other provision of this Agreement to
the contrary, any payments made to the Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with Section
18(k) of the Federal Deposit Insurance Act ("FDIA") (12 U.S.C. 1828(k)) and any
regulations promulgated thereunder;
(b) Notwithstanding any other provision of this Agreement to
the contrary, if the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Employer's affairs by a notice served under
Section 8(e)(3) or (g)(1) of FDIA (12 U.S.C. 1818(e)(3) and (g)(1)) the
Employer's obligations under this Agreement shall be suspended as of the date of
service unless stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Employer may in its discretion (i) pay the Executive all or
part of the compensation withheld while the Employer's contract obligations were
suspended, and (ii) reinstate (in whole or in part) any of its obligations which
were suspended.
(c) Notwithstanding any other provision of this Agreement to
the contrary, if the Executive is removed and/or permanently prohibited from
participating in the conduct of the Employer's affairs by an order issued under
Section 8(e)(4) or (g)(1) of FDIA (12 U.S.C. 1818(e)(4) and (g)(1)) all
obligations of the Employer under this Agreement shall terminate as of the
effective date of the order, but vested rights of the parties hereto shall not
be affected.
(d) Notwithstanding any other provision of this Agreement to
the contrary, if the Employer is in default (as defined in Section 3(x)(1) of
FDIA), all obligations under this
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Agreement shall terminate as of the date of default, but this Section
17(d) shall not affect any vested rights of the parties hereto.
(e) Notwithstanding any other provision of this Agreement to
the contrary, all obligations under this Agreement shall be terminated, except
to the extent determined that continuation of this Agreement is necessary to the
continued operation of the Employer: (i) by the Director of the Office of Thrift
Supervision or his or her designee (the "Director"), at the time the Federal
Deposit Insurance Corporation or Resolution Trust Corporation enters into an
agreement to provide assistance to or on behalf of the Employer under the
authority contained in Section 13(c) of FDIA; or, (ii) by the Director, at the
time the Director approves a supervisory merger to resolve problems related to
operation of the Employer or when the Employer is determined by the Director to
be in an unsafe or unsound condition. Any rights of the parties that have
already vested, however, shall not be affected by such action.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
EMPLOYER:
ATTEST/WITNESS: PRESTIGE BANK, A FEDERAL SAVINGS BANK
/s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
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Corporate Secretary President
EMPLOYEE:
/s/ Xxxxxxxx X. Xxxxx /s/ Xxxx X. Xxxxxx
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Corporate Secretary Xxxx X. Xxxxxx
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