EXHIBIT (10)
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Material Contracts
Executive Employment Agreement
with Xxxxx Xxxxxx
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made as of the 2nd day of January, 1998, between First
American National Bank of Pennsylvania, a Pennsylvania banking institution
(the "Bank"), Cardinal Bancorp, Inc., a Pennsylvania business corporation (the
"Corporation") and Xxxxx Xxxxxx, an adult individual (the "Executive").
WHEREAS, the Bank is a subsidiary of the Corporation; and
WHEREAS, the Corporation desires to employ the Executive as President and
Chief Executive Officer and the Bank desires to employ the Executive as its
President and Chief Executive Officer both under the terms and conditions set
forth herein; and
WHEREAS, the Executive desires to serve the Corporation and Bank in an
executive capacity under the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and intending to be legally bound hereby, the parties agree
as follows:
1. TERMS OF EMPLOYMENT. The Corporation and Bank hereby shall employ
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the Executive and the Executive hereby accepts employment with the Corporation
and Bank for a term of three (3) years beginning on January 2, 1998, and
ending on January 1, 2001, subject, however, to prior termination of this
Agreement as set forth below.
2. POSITION AND DUTIES. The Executive shall serve as the President
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and Chief Executive Officer of the Corporation and Bank and a member of the
Board of Directors of the Corporation and Bank, reporting only to the Board of
Directors of the Corporation and Bank and shall have supervision and control
over, and responsibility for, the general management and operation of the
Corporation and Bank, and shall have such other powers and duties as may from
time to time be prescribed by the Board of Directors of the Corporation and
Bank, provided that such powers and duties are consistent with the Executive's
position as the Chief Executive Officer in charge of the general management of
the Corporation and Bank.
3. ENGAGEMENT IN OTHER EMPLOYMENT. The Executive shall not engage
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in any business or commercial activities, duties or pursuits which compete
with the business or commercial activities of the Corporation or Bank, nor may
the Executive serve as a director or officer or in any other capacity in a
company which competes with the Corporation or Bank.
4. COMPENSATION.
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(a) ANNUAL DIRECT SALARY: As compensation for services
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rendered the Corporation and Bank under this Agreement,
the Executive shall be entitled to receive from the Bank an annual direct
salary of Eighty-five Thousand ($85,000) Dollars per year, (the "Annual Direct
Salary") payable in substantially equal bi-monthly installments (or such other
intervals, consistent with the Bank's payroll policy) prorated for any partial
employment period. The Annual Direct Salary shall be reviewed annually, no
later than November 30 of the then calendar year and shall be subject to such
annual change (but not reduced below $85,000 without the Executive's written
consent, except in cases of national financial depression or emergency when
compensation reduction has been implemented by the Board of Directors for the
Bank's senior management) as may be set by the Board of Directors of the
Corporation and Bank taking into account the position and duties of the
Executive and the performance of the Corporation and Bank under the
Executive's leadership.
(b) BONUS. The Board of Directors of the Corporation and Bank in its sole
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discretion may provide for payment of a periodic bonus to the Executive in
such an amount or nature as it may deem appropriate to provide incentive to
the Executive and to reward the Executive for his performance.
5. FRINGE BENEFITS, VACATION, EXPENSES, AND PERQUISITES.
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(a) EMPLOYEE BENEFIT PLANS. The Executive shall be entitled to participate
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in or receive benefits under all Bank employment benefit plans including, but
not limited to, any pension plan, profit-sharing plan, savings plan, life
insurance plan or disability insurance plan as made available by the Bank to
its employees, subject to and on a basis consistent with terms, conditions and
overall administration of such plans and arrangements.
(b) VACATION, HOLIDAYS, SICK DAYS AND PERSONAL DAYS. The Executive shall
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be entitled to the number of paid vacation days in each calendar year
determined by the Corporation and/or the Bank from time to time for its senior
executive officers. The Executive shall also be entitled to all paid
holidays, sick days and personal days given by the Corporation and/or the Bank
to its employees.
(c) BUSINESS EXPENSES. During the term of his employment hereunder, the
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Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by him, which are properly accounted for, in accordance with
the policies and procedures established by the Board of Directors of the
Corporation and/or the Bank for its senior executive officers.
(d) AUTOMOBILE. The Executive shall be entitled to the use of a Bank
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purchased or leased automobile as may be
agreed upon by the Board of Directors of the Corporation and/or the Bank and
the Executive. The Executive shall also be entitled to reimbursement for all
operating expenses of the automobile, including, but not limited to, oil,
gasoline, maintenance, repairs and insurance. The use of said automobile
shall be limited to the Executive, his spouse, authorized Bank personnel, or
designated driver in the event of an emergency.
6. POSITIONS. The Executive agrees to serve as a director on the Board
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of Directors of the Corporation or Bank and, if elected or appointed thereto,
in one or more offices of the Corporation or Bank, and/or in one or more
offices or as a director of any of the Corporation's and/or Bank's
subsidiaries. The Executive shall be entitled to receive additional
compensation for the duties described in this paragraph, consistent with the
Bank's and/or the Corporation's policies regarding compensation of its Board
of Directors and officers.
7. LIABILITY INSURANCE. The Bank and/or the Corporation shall use its
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best efforts to obtain insurance coverage for the Executive under an insurance
policy covering officers and directors of the Bank and Corporation against
lawsuits, arbitrations or other legal or regulatory proceedings; however,
nothing herein shall be construed to require the Bank and/or the Corporation
to obtain such insurance, if the Board of Directors of the Bank and/or the
Corporation determine that such coverage cannot be obtained at a reasonable
price.
8. UNAUTHORIZED DISCLOSURE. During the term of his employment hereunder,
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or at any later time, the Executive shall not, without the written consent of
the Board of Directors of the Corporation or Bank or a person authorized
thereby, knowingly disclose to any person, other than an employee of the
Corporation or Bank 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 the Corporation or Bank, any material confidential
information obtained by him while in the employ of the Corporation or Bank
with respect to any of the Corporation or Bank'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
materially damaging to the Corporation or Bank provided, however, that
confidential information shall not include any information known generally to
the 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 or a business
similar to that conducted by the Corporation or Bank or any information that
must be disclosed as required by law.
9. RESTRICTIVE COVENANT. The Executive covenants and agrees that the
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Executive shall not directly or indirectly, within the marketing area of the
Bank and/or the Corporation (defined as an area within ten (10) miles of any
branch location of the Bank), enter into or engage generally in direct or
indirect competition with the Corporation or Bank or any subsidiary of the
Corporation, either as an individual on his own or as a partner or joint
venturer, or as a director, officer, shareholder, employee, agent, independent
contractor, lessor or creditor of or for any person, for a period of one (1)
year after the date of termination of his employment. The existence of any
claim or cause of action of the Executive against the Corporation or Bank,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Corporation or Bank of this covenant. The
Executive agrees that any breach of the restrictions set forth in this
paragraph or paragraph 8 will result in irreparable injury to the Corporation
or Bank for which it shall have no adequate remedy at law and the Corporation
or Bank shall be entitled to injunctive relief in order to enforce the
provisions hereof. In the event that this paragraph shall be determined by
any court of competent jurisdiction to be unenforceable in part by reason of
it being too great a period of time or covering too great a geographical area,
it shall be in full force and effect as to that period of time or geographical
area determined to be reasonable by the court.
10. TERMINATION.
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(a) Death. The Executive's employment hereunder shall terminate upon his
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death.
(b) Disability. If the Executive becomes disabled because of sickness,
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physical or mental disability, or any other reason, the Corporation or Bank
shall have the option to terminate this Agreement by giving written notice of
termination to the Executive. Executive shall be deemed to have become
"disabled" only in the event and at such time as he qualifies (after
expiration of any applicable waiting period) to receive benefits for total
disability under the employee disability insurance benefit plan referred to in
paragraph 5(a) above.
(c) Cause. The Corporation may terminate the Executive's employment
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hereunder for Cause. As used in this Agreement, the Corporation shall have
Cause to terminate the Executive's employment hereunder upon: (1) the willful
failure by the Executive to substantially perform his duties hereunder after
notice from the Corporation and a failure to cure such violation within thirty
(30) days of said notice; (2) the willful engaging by the Executive in
misconduct injurious to the Corporation or Bank; (3) the willful violation by
the Executive of the provisions of
Paragraph 3 or 8 hereof after notice from the Corporation and/or Bank and a
failure to cure such violation within thirty (30) days of said notice, or if
said violation cannot be cured within thirty (30) days, within a reasonable
time thereafter unless the Executive is diligently attempting to cure the
violation; (4) the dishonesty or gross negligence of the Executive in the
performance of his duties; (5) the breach of Executive's fiduciary duty
involving personal profit; (6) the violation of any law, rule or regulation
governing banks or bank officers or any final cease and desist order issued by
a bank regulatory authority any of which materially jeopardizes the business
of the Corporation or Bank; (7) conduct on the part of Executive which brings
public discredit to the Corporation or Bank; or (8) the Executive's failure to
either be elected or to serve as a member of the Board of Directors of the
Corporation after having been nominated by the Board of Directors unless such
nomination is inconsistent with the duties of the Directors or the terms of
this Agreement.
(d) Termination by Executive. The Executive may terminate his employment
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hereunder if (1) his health should become impaired to an extent that it makes
continued performance of his duties hereunder hazardous to his physical or
mental health or his life, or (2) for Good Reason. The term "Good Reason":
shall mean (i) any assignment to the Executive, without his consent, of any
duties other than those contemplated by, or any limitation of the powers of
the Executive not contemplated by, paragraphs 2 and 6 hereof, or (ii) any
removal of the Executive from (other than as a result of his regulatory
removal or failure to be re-elected on the Corporation and Bank's Boards of
Directors) any of the positions indicated in paragraph 2 hereof, except in
connection with termination of the Executive's employment for Cause, or (iii)
failure of the Bank to comply with paragraph 5 hereof, or (iv) any Change of
Control (as defined herein); all after notice from the Executive to the
Corporation and Bank that such action or limitation of the Bank or Corporation
constitutes Good Reason and the failure to cure such situation within thirty
(30) days of said notice, or if said situation cannot be cured within thirty
(30) days, within a reasonable time thereafter if a diligent effort is being
made by the Corporation and/or the Bank to cure such situation.
11. PAYMENTS UPON TERMINATION.
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(a) If the Executive's employment shall be terminated because of death,
disability or for Cause, the Bank shall pay the Executive or his fiduciary his
full Annual Direct Salary through the date of termination at the rate in
effect at the time of termination and
the Corporation and Bank shall have no further obligation to the Executive
under this Agreement.
(b) If the Executive's employment is terminated by the Corporation or Bank
(other than pursuant to paragraphs 10(a) "Death"or 10(b)"Disability" or
10(c)"Cause" hereof), then the Bank shall pay the Executive his full Annual
Direct Salary from the date of termination through the last day of the term of
this Agreement or an amount equal to his current Annual Direct Salary,
whichever is greater. If the Executive shall terminate his employment for
Good Reason, other than a Change of Control as defined herein, then the Bank
shall pay the Executive an amount equal to his Annual Direct Salary.
(c) If the Executive shall terminate his employment for Good Reason, as
defined in paragraph 10(d)(iv), constituting a Change of Control, then the
Executive shall be entitled to receive from the Corporation and/or the Bank a
lump sum payment equal to the highest annual compensation, including cash
bonuses, during the three year period ending on the date of termination, for
the period of time left in the term. The Bank shall also maintain in full
force and effect, for the continued benefit of the Executive for an equivalent
period, all employee benefit plans and programs to which the Executive was
entitled prior to the date of termination, except those under paragraphs 5(b)
(but not including accrued vacation days), (c), and (d), if the Executive's
continued participation is possible under the general terms and provisions of
such plans and programs except that if the Executive's participation in any
health, medical, life insurance, or disability plan or program is barred, the
Bank shall obtain and pay for, on the Executive's behalf, individual insurance
plans, policies or programs which provide to the Executive health, medical,
life and disability insurance coverage which is substantially equivalent to
the insurance coverage to which the Executive was entitled prior to the date
of termination. In the event that:
(i) the aggregate payments or benefits to be made or afforded to the
Executive under said paragraph 11(c) would be deemed to include an excess
parachute payment under Section 280G of the Internal Revenue Code of 1986
(the" Code") or any successor thereto, and
(ii) if such Payments Upon Termination were reduced to an amount (the "Non-
Triggering Amount"), the value of which is one dollar ($1.00) less than an
amount equal to three (3) times Executive's "base amount," as determined in
accordance with said Section 280G, and the Non-Triggering Amount would be
greater than the aggregate value of the Payments Upon Termination (without
such reduction) minus the amount of tax required to be paid by the
Executive thereon by Section 4999 of the Code, then the Payments Upon
Termination shall be reduced to the Non-Triggering Amount. The allocation of
the reduction required hereby among the Payments Upon Termination provided by
the preceding paragraph of this Section shall be determined by the Executive.
(d) In the event the Executive serves the full term of this Agreement, and
the Bank or Corporation do not offer to renew this Agreement, the Executive
shall not be entitled to any severance allowance whatsoever and the
Corporation and Bank shall have no further obligations to the Executive under
this Agreement.
12. DAMAGES FOR BREACH OF CONTRACT. In the event of a breach of this
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Agreement by either the Corporation, Bank or the 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 no
event shall any party be entitled to the recovery of attorney's fees or costs.
13. DEFINITION OF CHANGE OF CONTROL. For purposes of this Agreement, the
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term "Change of Control" shall mean: A change in control (other than one
occurring by reason of an acquisition of the Corporation by Executive) of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A and any successor rule or regulation
promulgated under the Securities Exchange Act of 1934 (the "Exchange Act") if
Corporation were subject to the Exchange Act reporting requirements; provided
that, without limiting the foregoing, such a change in control shall be deemed
to have occurred if;
(a) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than the Corporation or any "person" who on the date
hereof is a director or officer of the Corporation is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Corporation representing twenty-five
percent (25%) or more of the combined voting power of the Corporation's then
outstanding securities, or
(b) during any period of two consecutive years during the term of Executive's
employment under this Agreement, individuals who at the beginning of such
period constitute the Board of Directors of the Corporation 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.
14. DEFINITION OF DATE OF CHANGE OF CONTROL. For purposes of this Agreement,
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the date of Change of Control shall mean:
(a) the first date on which a single person and/or entity, or group of
affiliated persons and/or entities, acquire the beneficial ownership of
twenty-five percent (25%) or more of the Corporation's voting securities, or
(b) the date of the transfer of all or substantially all of the Bank or
Corporation's assets, or
(c) the date on which a merger, consolidation or combination is consummated,
as applicable, or
(d) the date on which individuals who formerly constituted a majority of the
Board of Directors of the Bank or Corporation under paragraph 13(b) above,
ceased to be a majority.
15. NOTICE. For the purposes of this Agreement, notices and all other
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communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when hand-delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive: Xxxxx X. Xxxxxx
R. D. 0, Xxx 000X
Xxx Xxxxxxxxxx
Xxxxxxxxxxxx 00000-0000
If to the Bank: Xxxxx X. Xxxxxx
Chairman of the Board
First American National Bank of
Pennsylvania
000 Xxxx Xxxx Xxxxxx
P. O. Xxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000-0000
If to the Corporation: Xxxxx X. Xxxxxx
Chairman of the Board
Cardinal Bancorp, Inc.
000 Xxxx Xxxx Xxxxxx
P. O. Xxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000-0000
or to such other address as any party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
16. SUCCESSORS. This Agreement shall inure to the benefit of and be binding
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upon the Executive, his personal representatives, heirs or assigns and to the
Bank and/or the Corporation and any successors or assigns.
17. SEVERABILITY. If any provision of this Agreement is declared
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unenforceable for any reason, the remaining provisions of this Agreement shall
be unaffected thereby and shall remain in full force and effect.
18. AMENDMENT. This Agreement may be amended or canceled only by mutual
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agreement of the parties in writing.
19. PAYMENT OF MONEY DUE DECEASED EXECUTIVE. In the event of Executive's
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death, any moneys that may be due him from the Bank under this Agreement as of
the date of death shall be paid to the person designated by him in writing for
this purpose, or in the absence of any such designation to his estate.
20. LAW GOVERNING. This Agreement shall be governed by and construed in
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accordance with the laws of the Commonwealth of Pennsylvania.
21. ENTIRE AGREEMENT. This Agreement supersedes any and all agreements,
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either oral or in writing, between the parties with respect to the employment
of the Executive by the Corporation and Bank, and this Agreement contains all
the covenants and agreements between the parties with respect to the
employment.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement to be duly executed in their respective
names and, in the case of the Corporation and Bank, by its authorized
representatives the day and year above mentioned.
ATTEST: FIRST AMERICAN NATIONAL BANK
OF PENNSYLVANIA
/s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx
Secretary Chairman of the Board
ATTEST: CARDINAL BANCORP, INC.
/s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxx
Secretary Chairman of the Board
WITNESS:
/s/ Xxxxx X. Xxxxxx
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Xxxxx Xxxxxx
