Exhibit 10.18
EMPLOYMENT AGREEMENT
Agreement made this 4th day of June, 2002, by and between Omega Financial
Corporation, a financial holding company organized under the laws of the
commonwealth of Pennsylvania ("Bank"), and D. Xxxxxxx Xxxxx, an individual
("Xxxxx").
BACKGROUND
Xxxxx is currently employed by the Bank in the position of President and
C.O.O. Effective on September 1, 2002, Xxxxx has decided to relinquish his role
as President of Omega Financial Corporation and Omega Bank. At which time he
will remain as a Consultant as a Business Development Officer. The Bank desires
to retain the services of Xxxxx pursuant to the provisions of this Agreement, to
which Xxxxx is agreeable.
NOW, THEREOF, in consideration of the mutual covenants and agreements
herein contained, and intending to be legally bound hereby, the parties agree as
follows:
1. Duties. During the Term (as hereafter defined), Xxxxx shall be used as
necessary to assist with business development. He will remain on the Board of
Directors of Omega Bank and Omega Financial Corporation for the term of his last
election. During the Term, Xxxxx shall act in the best interest of the Bank and
Omega and Omega's other subsidiaries and use his best efforts to promote the
profitable growth of the Bank and Omega and Omega's other subsidiaries.
2. Term. The term of this Agreement shall commence on September 1, 2002
and ending on the earliest of the following dates (hereafter called the "Term"):
(a) the date Xxxxx dies or becomes permanently disabled (i.e., upon his failure
to render services of the character which he had previously rendered to the
Bank, because of his physical or mental illness or other incapacity beyond his
control; (b) termination of Xxxxx' employment with the Bank for cause (as
hereinafter defined); (c) termination of Xxxxx' employment without cause (in
which case Xxxxx shall be entitled to severance payments as described in Section
4(b) hereof); (d) mutual agreement of the Bank and Xxxxx; or (e) on July 31,
2004. For purposes of this Agreement, the term "cause" shall mean (i) indictment
or conviction of Xxxxx for any felony; or (ii) a request by any bank regulatory
authority for Xxxxx' dismissal due to his violation of any banking laws or
regulations; or (iii) dereliction of duty, gross negligence, insubordination,
disparagement of the Bank or its products or services, substance abuse, fraud,
misconduct or disclosure of confidential
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information; or (iv) Xxxxx' failure or refusal to comply with the written
policies or directives of the Bank's Board of Directors, provided Xxxxx fails to
cure such non-compliance within five days after receiving written notice from
the Bank's Board of Directors specifying such non-compliance or misconduct.
3. Base Compensation. During the Term, Xxxxx shall receive a base salary
of $120,000 per year payable in accordance with the Bank's payroll practices
applicable to its other employees.
4. Other Benefits.
(a) For 2002 only, in addition to the base compensation set forth in
Section 3 hereof, Xxxxx shall be entitled to a pro ration of any bonus or stock
options as may be accorded other Executives Officers as a result of his full
time employment of January 1, 2002 through August 31, 2002. He will be provided
access to health benefits as other employees are. He will be provided a
membership to Scotch Valley Golf Club.
(b) The Bank shall have the right to terminate Xxxxx' employment
without cause during the Term, in which case Xxxxx shall be entitled to
severance payments from the date of such termination until the earlier of (the
"Severance Payment Period") of the following dates: (i) July 31, 2004; (ii) the
date Xxxxx dies or becomes permanently disabled (i.e., upon his failure to
render service of the character which he had previously rendered to the Bank,
because of his physical or mental illness or other incapacity. The payments
during the Severance Payment Period shall be equal to the base annual salary
Xxxxx is entitled to under Section 3 hereof, pro rated in accordance with the
length of the Severance Payment Period, and payable as provided in Section 3
hereof.
5. Withholding. The Bank may withhold from any salary or benefits payable
under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
6. Confidentiality and Non-Competition. All payments to Xxxxx under this
Agreement shall be subject to Xxxxx' compliance with the provisions of this
Section 6. If Xxxxx fails to comply with such provisions, his right to any
future payments under this Agreement shall terminate and the Bank's obligations
under this Agreement to make such payments and provide such benefits shall
cease.
(a) Xxxxx covenants and agrees that he will not, during the Term of
his employment or at any time thereafter, except with the express prior written
consent of the Bank or pursuant to the lawful order of any judicial or
administrative agency of government, directly or indirectly, disclose,
communicate or divulge to any person, or use for the benefit of any person, any
knowledge or information with respect to
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the conduct or details of the Bank's business which he, acting reasonably,
believes or should believe to be of a confidential nature and the disclosure of
which not to be in the Bank's interest.
(b) Xxxxx covenants and agrees that he will not, during the Term of
his employment and for a period of two years thereafter, except with the express
written consent of the Bank, directly or indirectly, whether as an employee,
owner, partner, consultant, agent, director, officer, shareholder or in any
other capacity, engage in or assist any person to engage in any act or action
which he, acting reasonably, believes or should believe would be harmful or
inimical to the interests of the Bank.
(c) Xxxxx covenants and agrees that he will not, during the Term of
his employment and for a period of two years thereafter, except with the express
prior written consent of the Bank, in any capacity (including, but not limited
to, owner, partner, shareholder, consultant, agent, employee, officer, director
or otherwise), directly or indirectly, for his own account or for the benefit of
any person, engage or participate in or otherwise be connected with any
commercial bank, savings bank, credit union or commercial loan originator
(whether similar or dissimilar to the foregoing) which grants loans or credit
facilities to persons in Xxxxx, Huntingdon, Bedford, or Centre counties,
Pennsylvania.
(d) The parties agree that any breach by Xxxxx of any of the
covenants or agreements contained in this Section 6 will result in irreparable
injury to the Bank for which money damages could not adequately compensate the
Bank and, therefore, in the event of any such breach, the Bank shall be entitled
(in addition to any other rights and remedies which it may have at law or in
equity) to have an injunction issued by any competent court enjoining and
restraining Xxxxx and/or any other person involved therein from continuing such
breach. The existence of any claim or cause of action which Xxxxx may have
against the Bank or any other person shall not constitute a defense or bar to
the enforcement of such covenants or agreements. In the event of the breach of
Section 6(b) or Section 6(c) hereof, the two year period contained therein shall
be extended for the period of such breach and for the period of any litigation
concerning such breach, such extended period to commence on the later of (I) the
date of final court order (without further right of appeal) acknowledging the
validity of such Section 6(b) or Section 6(c) or (ii) the last day of the Term.
(e) If any portion of the covenants or agreements contained in this
Section 6, or the application hereof, is construed to be invalid or
unenforceable, the other portions of such covenant(s) or agreement(s) or the
application thereof shall not be affected and shall be given full force and
effect, without regard to the invalid or unenforceable portions, to the fullest
extent possible. If any covenant or
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agreement in this Section 6 is held unenforceable because of the area covered,
the duration thereof, or the scope thereof, then the court making such
determination shall have the power to reduce the area and/or duration and/or
limit the scope thereof, and the covenant or agreement shall then be enforceable
in its reduced form.
(f) For purposes of this Section 6, the term "the Bank" shall
include the Bank and Omega, any successor to the Bank under Section 7 hereof,
and all present and future direct and indirect subsidiaries and affiliates of
the Bank or Omega.
7. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon any corporate or other successor of the Bank which will
acquire, directly or indirectly, by merger, consolidation, purchase, or
otherwise, all or substantially all of the assets of the Bank, and shall
otherwise inure to the benefit of and be binding upon the parties hereto and
their respective heirs, executors, administrators, successors and assigns.
Nothing in the Agreement shall preclude the Bank from consolidating or merger
into or with or transferring all or substantially all of its assets to another
person. In that event, such other person shall assume this Agreement and all
obligations of the Bank hereunder. Upon such a consolidation, merger, or
transfer of assets and assumption, the term "the Bank" as used herein, shall
mean such other person and this Agreement shall continue in full force and
effect.
8. Waivers Not to be Continued. Any waiver by a party of any breach of
this Agreement by another party shall not be construed as a continuing waiver or
as a consent to any subsequent breach by the other party.
9. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand (including recognized courier service) or mailed, certified or
registered mail, return receipt requested, with postage prepaid, to the
following addresses or to such other address as either party may designate by
like notice:
A. If to Xxxxx, to:
D. Xxxxxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxxxxxxxxx, XX 00000
B. If to the Bank, to:
Omega Bank
000 Xxxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
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10. Jurisdiction. Bank and Xxxxx hereby consent to the exclusive
jurisdiction of the Courts of Common Please of Centre County, Pennsylvania in
any and all actions arising hereunder and irrevocably consent to service of
process as set forth in Section 9 hereof.
11. General Provisions.
(a) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof, and supersedes and replaces
all prior agreements between the parties. No amendment, supplement, waiver or
termination (other than terminations for breach) of any of the provisions hereof
shall be effective unless in writing and signed by the party against whom it is
sought to be enforced. Any written amendment, supplement, waiver or termination
hereof executed by the Bank and Xxxxx shall be binding upon them and upon all
other persons, without the necessity of securing the consent of any other person
and no person shall be deemed to be a third party beneficiary under this
Agreement.
(b) The term "person" as used in this Agreement means a natural
person, joint venture, corporation, limited liability company, sole
proprietorship, trust, estate, partnership, cooperative, association, non-profit
organization or any other legally cognizable entity.
(c) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same Agreement.
(d) No failure on the part of any party hereto to exercise and no
delay in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
remedy hereunder preclude any other or further exercise thereof or the exercise
of any other rights, power or remedy.
(e) The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall in no way restrict or
modify any of the terms or provisions hereof.
(f) This Agreement shall be governed and construed and the legal
relationships of the parties determined in accordance with the laws of the
Commonwealth of Pennsylvania applicable to contracts executed and to be
performed solely in the Commonwealth of Pennsylvania. The legal principle that
ambiguities are construed against the drafter of a document shall not be
applicable to this document.
(g) Nothing contained herein shall be construed to require the Bank
to violate applicable law, including, but not limited to, applicable banking
laws and regulations, and all obligations of the Bank under this Agreement shall
be deemed to be qualified accordingly.
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(h) Effective on the date hereof, Xxxxx hereby releases the Bank
from all of the Bank's obligations under an Executive Employment Contract dated
August 6, 1993 with Xxxxx.
OMEGA FINANCIAL CORPORATION
(Corporate Seal) By: /s/ Xxxxx X. Xxx
Attest: /s/ Xxxxx X. Xxxxx, Sec'y
Witness:
/s/ Xxxxxx Xxxxx
/s/ D. Xxxxxxx Xxxxx (SEAL)
D. Xxxxxxx Xxxxx
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