Exhibit 10.8
FEBRUARY 20, 2001
EMPLOYMENT AGREEMENT
PROMISTAR FINANCIAL CORPORATION ("PROMISTAR"), and Xxxxx X. Xxxxxx ("Executive")
agree to enter into this EMPLOYMENT AGREEMENT dated as of January 24, 2001 as
follows:
1. Employment.
PROMISTAR hereby agrees to continue to employ Executive, and Executive
hereby agrees to continue to be employed by PROMISTAR, upon the terms and
subject to the conditions set forth in this Agreement.
2. Term of Employment.
The initial term of Executive's employment under this Agreement shall be
for a period of two (2) years, beginning on January 24, 2001 and ending on
January 23, 2003. On each anniversary of the initial commencement date
while Executive remains employed hereunder, such term will be automatically
extended one more year, unless PROMISTAR provides written notice of its
intent not to so extend this Agreement at least thirty (30) days prior to
any anniversary date hereof; provided, however, that notwithstanding any
such notice by PROMISTAR not to extend, the term of this Agreement shall
not expire prior to the expiration of twelve (12) months on or after the
occurrence of a Change of Control which occurs while this Agreement is in
effect.
3. Duties and Responsibilities.
(a) PROMISTAR will continue to employ Executive as its Senior Vice
President and Chief Financial Officer. In such capacity, Executive
shall perform the customary duties and have the customary
responsibilities of such position and such other duties as may be
assigned to Executive from time to time by the Chief Executive Officer
of PROMISTAR or his designee.
(b) Executive agrees to faithfully serve PROMISTAR, devote his full
working time, attention and energies to the business of PROMISTAR, its
subsidiaries and affiliated entities, and perform the duties under
this Agreement to the best of his abilities. Executive may perform
services without direct compensation therefor in connection with the
management of personal investments or in connection with charitable or
civic organizations.
-1-
(c) Executive agrees:
(i) To comply with all applicable laws, rules and regulations, and
all requirements of all applicable regulatory, self-regulatory,
and administrative bodies;
(ii) To comply with PROMISTAR's rules, procedures, policies,
requirements, and directions; and
(iii) Not to engage in any other business or employment without the
written consent of PROMISTAR, except as otherwise specifically
provided herein.
4. Compensation and Benefits.
(a) Base Salary. During the Employment Term, PROMISTAR shall pay
Executive a base salary at the annual rate of $118,884 per year or
such higher rate as may be determined from time to time by PROMISTAR
("Base Salary"). Such Base Salary shall be paid in accordance with
PROMISTAR's standard payroll practice for executives.
(b) Incentive Compensation Plans. During the Employment Term, Executive
shall be eligible to participate in PROMISTAR's incentive compensation
plan(s) in accordance with PROMISTAR's normal practice for executives.
(c) Expense Reimbursement. PROMISTAR shall promptly reimburse Executive
for the ordinary and necessary business expenses incurred by Executive
in the performance of the duties under this Agreement in accordance
with PROMISTAR's customary practices applicable to executives,
provided that such expenses are incurred and accounted for in
accordance with PROMISTAR's policy.
(d) Benefit Plans, Fringe Benefits and Vacations. Executive shall be
eligible to participate in or receive benefits under any pension plan,
401(k) savings plan, nonqualified deferred compensation plan,
supplemental executive retirement plan, medical and dental benefits
plan, life insurance plan, short-term and long-term disability plans,
supplemental and/or incentive compensation plans, or any other employee
benefit or fringe benefit plan, generally made available by PROMISTAR
to executives in accordance with the eligibility requirements of such
plans and subject to the terms and conditions set forth in such plans
and this Agreement.
5. Termination of Employment
Executive's employment under this Agreement may be terminated under any of
the circumstances set forth in this Section 5. Upon termination, Executive
(or his beneficiary or estate, as the case may be) shall be entitled to
receive the compensation described in Section 6 below, and, if applicable,
Section 7 below.
-2-
(a) Death. Executive's employment shall terminate upon Executive's death.
(b) Totally Disabled. PROMISTAR may terminate Executive's employment upon
his becoming "Totally Disabled." For purposes of this Agreement,
Executive shall be "Totally Disabled" if Executive is physically or
mentally incapacitated so as to render Executive incapable of
performing his usual and customary duties under this Agreement.
Executive's receipt of disability benefits under PROMISTAR's long-term
disability benefits plan (the "LTD Plan") or receipt of Social
Security disability benefits shall be deemed conclusive evidence of
being Totally Disabled for purpose of this Agreement; provided,
however, that in the absence of Executive's receipt of such long-term
disability benefits or Social Security benefits, PROMISTAR's Board of
Directors (the "Board") may, in its reasonable discretion (but based
upon appropriate medical evidence), determine that Executive is
Totally Disabled.
(c) Termination by PROMISTAR for Cause. PROMISTAR may terminate
Executive's employment for "Cause." Such termination shall be
effective as of the date specified in the written Notice of
Termination provided to Executive.
(i) For purposes of this Agreement, the term "Cause" shall mean any
of the following:
(A) Conviction of a crime (including conviction on a nolo
contendere plea) involving the commission by Executive of a
felony or of a criminal act involving, in the good faith
judgment of the Board, fraud, dishonesty or moral turpitude,
but excluding any conviction which results solely from
Executive's title or position with PROMISTAR and is not
based on his personal conduct;
(B) Deliberate and continual refusal to perform employment
duties reasonably requested by PROMISTAR or an affiliate
after thirty (30) days' written notice by certified mail of
such failure to perform, specifying that the failure
constitutes Cause (other than as a result of approved
vacation, sickness, illness or injury);
(C) Fraud or embezzlement determined in accordance with
PROMISTAR's normal, internal investigative procedures
consistently applied in comparable circumstances;
(D) Gross misconduct or gross negligence in connection with the
business of PROMISTAR or an affiliate which has substantial
effect on PROMISTAR or the affiliate; or
(E) Breach of any of the covenants set forth in Section 9
hereof.
(ii) Regardless of whether Executive's employment initially was
considered to be terminated for any reason other than Cause,
Executive's employment will be considered to have been terminated
for Cause for purposes of this Agreement if the Board
subsequently determines that Executive engaged in an act
constituting Cause.
-3-
(iii) Any determination of Cause under this Agreement shall be made
by resolution adopted by unanimous vote of a quorum of the
Board at a meeting called and held for that purpose. Executive
shall be provided with reasonable notice of such meeting and
Executive shall be given the opportunity to be heard before
such vote is taken by the Board.
(d) Termination by PROMISTAR without Cause. PROMISTAR may terminate
Executive's employment under this Agreement without Cause after
providing Notice of Termination to Executive.
(e) Termination by Executive. Executive may terminate his employment under
this Agreement after providing written Notice of Termination to
PROMISTAR. Such Notice shall state whether Executive's termination is
by reason of a deemed "Constructive Termination Event." Termination of
employment by Executive by reason of a "Constructive Termination Event"
shall be deemed to have occurred, if Executive provides the Notice of
Termination within ninety (90) days after the occurrence of any of the
following:
(i) Without Executive's express written consent, a change in
Executive's responsibilities, status, titles, or offices, and
in the reasonable judgment of Executive, such change represents
a material diminution or increase of the Executive's
responsibilities, status, titles, or offices, work load,
required hours or travel from that historically required of the
Executive, or any removal of Executive from, or any failure to
re-elect Executive to, any of such titles or offices, except in
connection with the termination of Executive's employment as a
result of his death, or by PROMISTAR for being Totally Disabled
or Cause, or by Executive other than by reason of a
Constructive Termination Event.
(ii) A reduction by PROMISTAR in Executive's Base Salary.
(iii) An intentional, material reduction by PROMISTAR of Executive's
aggregate incentive opportunities under the incentive
compensation plans available to senior executives.
(iv) The failure of PROMISTAR to maintain Executive's relative level
of coverage under PROMISTAR's employee benefit, retirement, or
material fringe benefit plans, policies, practices, or
arrangements in which Executive participates, both in terms of
the amount of benefits provided and the relative level of
Executive's participation. For this purpose, PROMISTAR may
eliminate and/or modify existing employee benefit plans and
coverage levels on a consistent and nondiscriminatory basis
applicable to all such executives; provided, however, that
Executive's level of coverage under all such programs must be
at least as great as such coverage provided to employees who
have the same or lesser levels of reporting responsibilities
within PROMISTAR's organization.
(v) The failure by PROMISTAR to pay Executive any material amount
of his current compensation, or any material amount of his
compensation deferred under any plan, agreement or arrangement
of or with
-4-
PROMISTAR, within ten (10) days after Executive makes
written demand for such amount.
(vi) The required relocation of the Executive out of PROMISTAR's
principal executive offices or the metropolitan area of the
Executive's principal office without the Executive's prior
written consent.
(vii) The failure by PROMISTAR to obtain an assumption of PROMISTAR'S
obligations under this Agreement by any successor to PROMISTAR.
(f) Notice of Termination. Any termination of Executive's employment by
PROMISTAR or by Executive (other than by reason of Executive's death)
shall be communicated by written Notice of Termination to the other
party in accordance with Section 19 below. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice in writing
which shall indicate the specific termination provision in this
Agreement relied upon to terminate Executive's employment and shall
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.
(g) Date of Termination. The effective date of Executive's termination of
employment shall be:
(i) In the event of his death, the date of death;
(ii) In the event of termination on account of being Totally
Disabled, thirty (30) days after Notice of Termination is given
(provided that Executive shall not have returned to the
performance of his duties on a full-time basis during such
thirty (30) day period);
(iii) In the event of termination by PROMISTAR for Cause or without
Cause or by Executive by reason of a Constructive Termination
Event, the date specified in the Notice of Termination; and
(iv) In the event of any other termination, the last day of the
thirty (30) day period beginning on the date on which written
Notice of Termination is given (the "Notice Period"), or such
earlier date as may be specified by PROMISTAR or later date as
may be mutually agreed by the parties.
6. Compensation in Event of Termination.
(a) Termination Without Cause or as a Result of a Constructive Termination
Event. In the event that Executive's employment hereunder is
terminated:
(i) By PROMISTAR without Cause pursuant to Section 5(d) hereof; or
(ii) By Executive by reason of a Constructive Termination Event
pursuant to Section 5(e) hereof;
-5-
then PROMISTAR shall pay or provide in the same manner as before
termination, as applicable, the following compensation and benefits to
Executive:
(iii) Continuation of full base salary and benefits during the time
period equal to the remaining Employment Term immediately prior
to Executive's termination (without regard to any future
renewals that would have occurred absent such termination),
but, in no event, less than one (1) year (the "Termination
Period");
(iv) Continue to participate in PROMISTAR's incentive compensation
plans for each award cycle under such plans which began prior
to the Termination Period, assuming Executive was a good
performer during such award cycle and the award payable for
such cycle shall be a pro-rata portion of the amount determined
as of the close of each such award cycle based on the length of
Executive active employment during the cycle to the length of
the cycle with the award payable in the same manner Executive
would have been paid if he continued to be an active employee.
(v) Any other amounts, awards, benefits or other compensation to
which Executive is or, prior to Executive's termination of
employment, was entitled during the Termination Period under
any of PROMISTAR's other compensation plans which to the extent
of any vesting dates occurring during the Termination Period
shall be considered to vest on such date notwithstanding such
termination (unless more quickly vested pursuant to Section
8(b) hereof or the terms of such plan); and
(vi) Continuing coverage, to the extent not prohibited by law,
during the Termination Period or until comparable benefits are
made available to him in connection with subsequent employment,
whichever period is shorter, for Executive and his eligible
dependents under all of PROMISTAR's benefit plans in effect and
applicable to Executive and his eligible dependents as of the
Date of Termination. In the event that Executive and/or his
eligible dependents, because of Executive's terminated status,
cannot be covered or fully covered under any or all of
PROMISTAR's benefit plans, PROMISTAR shall continue to provide
Executive and/or his eligible dependents with the same level of
such coverage in effect prior to termination, on an unfunded
basis if necessary.
(b) Termination for Cause by PROMISTAR. In the event that PROMISTAR shall
terminate Executive's employment hereunder for Cause pursuant to
Section 5(c), this Agreement shall forthwith terminate. PROMISTAR
shall continue to pay Executive the compensation and benefits set
forth in Section 4 until the date specified in the Notice of
Termination.
(c) Termination by Executive. In the event that Executive shall terminate
employment hereunder (other than by reason of a Constructive
Termination Event) pursuant to Section 5(e) hereof, this Agreement
shall forthwith terminate at the end of the Notice Period and
PROMISTAR shall continue to pay Executive the compensation and
benefits set forth in Section 4 until the end of the Notice Period.
-6-
(d) Death. In the event of the death of Executive, in addition to any
group term life insurance benefit generally available to its
employees, PROMISTAR shall provide, either directly or indirectly
through life insurance, to the Executive's beneficiaries or estate, an
amount of death benefits as determined from time to time by the Board.
In addition, PROMISTAR shall provide continuing coverage, to the
extent not prohibited by law, for a period of twelve (12) months from
the date of Executive's death for Executive's eligible dependents
under all of PROMISTAR's benefit plans in effect and applicable to
Executive and his eligible dependents as of the date of death. In the
event that such eligible dependents cannot be covered or fully covered
under any or all of PROMISTAR's benefit plans, PROMISTAR shall
continue to provide Executive's eligible dependents with the same
level of such coverage in effect prior to termination, or an unfunded
basis if necessary.
(e) Substitute Disability Benefits. In the event that Executive's
employment is terminated by reason of his becoming Totally Disabled as
determined in accordance with Section 5(b), PROMISTAR shall pay or
provide Executive in the same manner as before termination the
compensation and benefits that he would have received if he had
terminated employment entitled to compensation and benefits under
Section 6(a) hereof until the earlier of the date on which Executive
is determined by the Board to no longer be Totally Disabled, twenty-
four (24) months from such termination of employment, or the
expiration of the term of this Agreement. Such payments shall be
offset by LTD Plan benefits and/or Social Security disability
benefits, if applicable, received during the same period.
(f) Mutual Written Consent. In the event that Executive and PROMISTAR
shall terminate Executive's employment by mutual written agreement,
PROMISTAR shall pay such compensation and provide such benefits, if
any, as the parties may mutually agree upon in writing.
(g) Other. Executive shall not be required to mitigate the amount of any
payment provided for in this Section 6 by seeking employment or
otherwise, nor shall any amounts received from employment, insurance
or otherwise by Executive offset or reduce in any manner the
obligations of PROMISTAR hereunder.
7. Change of Control.
(a) Definitions.
(i) "Change of Control" means the date upon which any of the
following events occur:
(A) PROMISTAR acquires actual knowledge that any Person (other
than PROMISTAR or any employee benefit plan sponsored by
PROMISTAR) has acquired beneficial ownership, directly or
indirectly, of securities entitling such Person to 25% or
more of the voting power of PROMISTAR.
-7-
(B) (I) A tender offer is made to acquire securities of
PROMISTAR entitling the holders thereof to 50% or more
of the voting power of PROMISTAR; or
(II) Voting securities of PROMISTAR are first purchased
pursuant to any other tender offer.
(C) The individuals who as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent
to the date hereof whose election, or nomination for
election by PROMISTAR's shareholders, was approved by a vote
of at least two-thirds of the directors then comprising the
Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of an actual
or threatened election contest with respect to the election
or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a
Person other than the Board.
(D) The shareholders of PROMISTAR shall approve an agreement
providing for PROMISTAR to be merged, consolidated or
otherwise combined with, or for all or substantially all its
assets or stock to be acquired by, another Person, as a
consequence of which the former shareholders of PROMISTAR
will own, immediately after such merger, consolidation,
combination or acquisition, less than a majority of the
voting power of such surviving or acquiring Person or the
parent thereof.
(E) The shareholders of PROMISTAR shall approve any liquidation
of all or substantially all of the assets of PROMISTAR or
any distribution to security holders of assets of PROMISTAR
having a value equal to 30% or more of the total value of
all the assets of PROMISTAR.
(ii) For the purposes of this Section:
(A) "Effective Date" is January 1, 2001.
(B) "Person" means any person within the meaning of Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended.
(b) Payment Following Change of Control. In the event that Executive's
employment hereunder is terminated for any reason other than for Cause
within six (6) months prior to or within twelve (12) months following
a Change of Control, for any reason, then, at Executive's sole option,
in lieu of any compensation or benefits owed to Executive pursuant to
Section 6 of this Agreement, PROMISTAR shall pay or provide the
following compensation and benefits to Executive:
-8-
(i) A lump sum payment equal to two (2) times Executive's then
applicable base salary and average annual incentive compensation
plans payments earned over the last three (3) fiscal years of
PROMISTAR;
(ii) Any other amounts, awards, benefits or other compensation to
which Executive is or, prior to his termination of employment,
was entitled during the Termination Period defined in Section
6(a)(iii) under any of PROMISTAR's other compensation plans,
which to the extent of any vesting dates occurring during such
Termination Period, shall be considered to vest on such date
notwithstanding such termination (unless more quickly vested
pursuant to Section 8(b) hereof or the terms of such plans); and
(iii) Continuing coverage, to the extent not prohibited by law, for
a period of twenty-four (24) months from Executive's Date of
Termination or until comparable benefits are made available to
him in connection with subsequent employment, whichever period is
shorter, for Executive and his eligible dependents under all of
PROMISTAR's benefit plans in effect and applicable to Executive
and his eligible dependents as of the Date of Termination. In
the event that Executive and/or his eligible dependents, because
of Executive's terminated status, cannot be covered or fully
covered under any or all of PROMISTAR's benefit plans, PROMISTAR
shall continue to provide Executive and/or his eligible
dependents with the same level of such coverage in effect prior
to termination, on an unfunded basis if necessary.
(iv) The amount paid to or made available to Executive hereunder shall
not exceed the product of two and ninety-nine hundredths (2.99)
times Executive's "base amount" as defined in Section 280G(b)(3)
of the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder. This determination shall be
made by PricewaterhouseCoopers, LLP or such other nationally
recognized certified public accounting firm as may be designated
by PROMISTAR which shall provide detailed supporting calculations
both to PROMISTAR and Executive within fifteen (15) business days
after it has been advised that a payment hereunder is to be made,
or such earlier time as is requested by PROMISTAR. All
reasonable fees and expenses of the accounting firm shall be
borne solely by PROMISTAR. Any determination made by the
accounting firm shall be binding upon PROMISTAR and Executive,
although either party may challenge such a determination through
arbitration as provided in Section 12.
(v) Executive shall notify PROMISTAR in writing of any claim by the
Internal Revenue Service that, if successful, would require the
payment by Executive of the excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended, and any interest
or penalties with respect thereto. Such notification shall be
given as soon as practicable but no later than ten (10) business
days after Executive is informed in writing of such claim and
shall apprise PROMISTAR of the nature of such claim and the date
on which such claim is requested to be paid. Executive shall not
pay such claim prior to the expiration of the thirty (30)
-9-
day period following the date on which Executive gives such
notice to PROMISTAR (or such shorter period ending on the date
that any payment of taxes with respect to such claim is due). If
PROMISTAR notifies Executive in writing prior to the expiration
of such period that it desires to contest such claim, Executive
shall:
(A) Give PROMISTAR any information reasonably requested by
PROMISTAR relating to such claim,
(B) Take such action in connection with contesting such claim
as PROMISTAR shall reasonably request in writing from time
to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by PROMISTAR,
(C) Cooperate with PROMISTAR in good faith in order to
effectively contest such claim, and
(D) Permit PROMISTAR to control any proceedings relating to
such claim; provided, however, that PROMISTAR shall bear
and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Executive
harmless, on an after-tax basis, for any such excise tax or
income tax (including interest and penalties with respect
thereto) imposed as a result of such representation and
payment of costs and expenses.
8. Effect of Termination. Upon the termination of Executive's employment
hereunder, neither PROMISTAR nor Executive shall have any remaining duties
or obligations hereunder except that:
(a) PROMISTAR shall:
(i) Pay Executive's accrued salary and any other accrued benefits
for all periods ending on or prior to the Date of Termination
under Section 4 hereof;
(ii) Reimburse Executive for expenses incurred in accordance with
Section 4 for all periods ending on or prior to Date of
Termination;
(iii) Pay or otherwise provide for any benefits, payments or
continuation or conversion rights in accordance with the
provisions of any PROMISTAR benefit plan of which Executive or
any of his dependents is or was a participant or as otherwise
required by law;
(iv) Pay all compensation previously deferred by Executive and not
yet paid by PROMISTAR (together with interest, if any, thereon)
and any other accrued benefits, including accrued vacation pay
not yet paid by PROMISTAR;
-10-
(v) Pay Executive and his beneficiaries any compensation or provide
the Employee or his elible dependants any bebefits due pursuant
to Sections 6 0r 7 hereof
(b) Unless the employment of Executive is terminated for Cause pursuant to
Section 5(c) or by Executive without a Constructive Termination Event
pursuant to Section 5(d), the vesting period shall lapse for all stock
options or other stock awards previously granted to Executive by
PROMISTAR and all such stock awards shall be deemed to be fully
vested.
(c) PROMISTAR's obligation to make the payments provided for in this
Agreement (other than the obligation to pay to the Executive's base
salary through the Date of Termination and any accrued vacation pay,
and other benefits, in each case to the extent theretofore unpaid) and
otherwise to perform its obligations hereunder are subject to
Executive's signing and delivery to PROMISTAR of a general release in
the form of Appendix A attached hereto.
9. Restrictive Covenants.
(a) Protected Information. Executive recognizes and acknowledges that he
will have access to various confidential or proprietary information
concerning PROMISTAR and entities affiliated with PROMISTAR of a
special and unique value which may include, without limitation, (i)
books and records relating to operation, finance, accounting, sales,
personnel and management, (ii) policies and matters relating
particularly to operations such as customer service requirements,
costs of providing service and equipment, operating costs and pricing
matters, and (iii) various trade or business secrets, including
business opportunities, marketing or business diversification plans,
business development and bidding techniques, methods and processes,
financial data and the like (collectively, the "Protected
Information"). Executive therefore covenants and agrees that he will
not at any time, either while employed by PROMISTAR or afterwards,
knowingly make any independent use of, or knowingly disclose to any
other person or organization (except as authorized by PROMISTAR) any
of the Protected Information.
(b) Competitive Activity. Executive covenants and agrees that at all times
(i) during his period of employment with PROMISTAR, and (ii) during
the period beginning on the Date of Termination of his employment
(whether such termination is voluntary or involuntary, or otherwise)
and ending on the later of one (1) year following his Date of
Termination or the last date on which Executive receives compensation
and benefits pursuant to Section 6 or 7 above, he will not, directly
or indirectly, engage in, assist, or have any active interest or
involvement (whether as an employee, agent, consultant, creditor,
advisor, officer, director, stockholder [excluding holding of less
than 1% of the stock of a public company], partner, proprietor or any
type of principal whatsoever) in any business enterprise which engages
in substantial and direct competition with PROMISTAR and such
enterprise's revenues derived from any product or service competitive
with any product or service of PROMISTAR amounted to ten percent (10%)
or more of such enterprise's revenues for its most recently completed
fiscal year and if PROMISTAR's revenues for such product or service
amounted to ten
-11-
percent (10%) of PROMISTAR's revenues for its most recently completed
fiscal year. This covenant and agreement will not include
participation in the management of any such enterprise other than in
connection with the competitive operations of such enterprise.
(c) Non-Solicitation. Executive covenants and agrees that during the
period beginning on the Date of Termination of his employment (whether
such termination is voluntary or involuntary, or otherwise) and ending
on the later of one (1) year following his Date of Termination or the
last date on which Executive receives compensation and benefits
pursuant to Section 6 or 7, he will not directly or indirectly
recruit, solicit, hire, or cause to be hired, any individual who is
then, or who has been within the preceding six (6) month period, an
employee of PROMISTAR.
(d) Non-Disparagement. Executive covenants and agrees that during the
course of his employment by PROMISTAR or at any time thereafter,
Executive shall not, directly or indirectly, in public or private,
deprecate, impugn, disparage, or make any remarks that would tend to
or be construed to tend to defame PROMISTAR or any of its employees,
members of its board of directors or agents, nor shall Executive
assist any other person, firm or company in so doing.
(e) Return of Documents and Other Materials. Executive shall promptly
deliver to PROMISTAR, upon termination of his employment, or at any
other time as PROMISTAR may so request, all lists of customers, leads
and customer pricing, data processing programs and documentation,
employee information, memoranda, notes, records, reports, tapes,
manuals, drawings, blueprints, programs and any other documents and
other materials (and all copies thereof) relating to PROMISTAR's
business or that of its customers, and all property associated
therewith, which Executive may then possess or have under his control.
10. Enforcement of Covenants.
(a) Termination of Employment and Forfeiture of Compensation. Executive
agrees that in the event that PROMISTAR determines that he has
breached any of the covenants set forth in Section 9 above during his
employment, PROMISTAR shall have the right to terminate his employment
for Cause in accordance with Section 5(c) hereof. In addition,
Executive agrees that if PROMISTAR determines that he has breached any
of the covenants set forth in Section 9 at any time, PROMISTAR shall
have the right to discontinue any or all remaining benefits payable
pursuant to Section 6 or 7 above. Such termination of employment or
discontinuance of benefits shall be in addition to and shall not limit
any and all other rights and remedies that PROMISTAR may have against
Executive.
(b) Right to Injunction. Executive acknowledges that a breach of the
covenants set forth in Section 9 above will cause irreparable damage
to PROMISTAR with respect to which PROMISTAR's remedy at law for
damages will be inadequate. Therefore, in the event of breach or
anticipatory breach of the covenants set forth in this Section by
Executive, Executive and PROMISTAR agree that
-12-
PROMISTAR shall be entitled to the following particular forms of
relief, in addition to remedies otherwise available to it at law or
equity: (i) injunctions, both preliminary and permanent, enjoining or
restraining such breach or anticipatory breach and Executive hereby
consents to the issuance thereof forthwith and without bond by any
court of competent jurisdiction; and (ii) recovery of all reasonable
sums expended and costs, including reasonable attorney's fees,
incurred by PROMISTAR to enforce the covenants set forth in Section 9.
(c) Separability of Covenants. The covenants contained in Section 9 above
constitute a series of separate covenants, one for each applicable
State in the United States and the District of Columbia, and one for
each applicable foreign country. If in any judicial proceeding, a
court shall hold that any of the covenants set forth in Section 9
exceed the time, geographic, or occupational limitations permitted by
applicable laws, Executive and PROMISTAR agree that such provisions
shall and are hereby reformed to the maximum time, geographic, or
occupational limitations permitted by such laws. Further, in the event
a court shall hold unenforceable any of the separate covenants deemed
included herein, then such unenforceable covenant or covenants shall
be deemed eliminated from the provisions of this Agreement for the
purpose of such proceeding to the extent necessary to permit the
remaining separate covenants to be enforced in such proceeding.
Executive and PROMISTAR further agree that the covenants in Section 9
shall each be construed as a separate agreement independent of any
other provisions of this Agreement, and the existence of any claim or
cause of action by Executive against PROMISTAR whether predicated on
this Agreement or otherwise, shall not constitute a defense to the
enforcement by PROMISTAR of any of the covenants of Section 9.
11. Withholding of Taxes. PROMISTAR shall withhold from any compensation and
benefits payable under this Agreement all applicable federal, state, local,
or other taxes.
12. Arbitration of Disputes. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration administered by the American Arbitration Association under its
National Rules for the Resolution of Employment Disputes and judgment upon
the award rendered by the arbitrator(s) may be entered by any court having
jurisdiction thereof. Any such arbitration shall take place in the
Commonwealth of Pennsylvania, County of Cambria.
13. Waiver of Jury Trial. In the event any controversy or claim arising out of
Executive's employment or the termination of Executive's employment is
found by a court of competent jurisdiction not to be subject to final and
binding arbitration, Executive and PROMISTAR agree to try such claim or
controversy, without use of a jury or advisory jury.
14. No Claim Against Assets. Nothing in this Agreement shall be construed as
giving Executive any claim against any specific assets of PROMISTAR or as
imposing any trustee relationship upon PROMISTAR in respect of Executive.
Subject to Section 16 below, PROMISTAR shall not be required to establish a
special or separate fund or to
-13-
segregate any of its assets in order to provide for the satisfaction of its
obligations under this Agreement. Executive's rights under this Agreement
shall be limited to those of an unsecured general creditor of PROMISTAR and
its affiliates.
15. Successors and Assignment. Except as otherwise provided in this Agreement,
this Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, representatives, successors and
assigns.
(a) Company Successor. PROMISTAR shall require any person (or persons
acting as a group) who acquires ownership or effective control of
PROMISTAR or ownership of a substantial portion of the business or
assets of PROMISTAR (whether direct or indirect, by purchase, merger,
consolidation or otherwise), by agreement in form and substance
satisfactory to Executive, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent as PROMISTAR
would be required to perform it if no such acquisition had taken
place. In the event that PROMISTAR fails to obtain such agreement
prior to the effectiveness of any such acquisition, PROMISTAR shall
establish an irrevocable trust fund or similar arrangement containing
assets sufficient to assure payment of all obligation under this
Agreement, provided that Executive's right to payment from such trust
fund or arrangement shall be no greater than the right of an unsecured
creditor of PROMISTAR and its affiliates. As used in this Agreement,
"PROMISTAR" shall mean PROMISTAR as defined in the first sentence of
this Agreement and any person (or group) who acquires ownership or
effective control of PROMISTAR or ownership of a substantial portion
of the business or assets of PROMISTAR or which otherwise becomes
bounded by all the terms and provisions of this Agreement, whether by
the terms hereof, by operation of law or otherwise.
(b) Assignment by Executive. The rights and benefits of Executive under
this Agreement are personal to him and no such right or benefit shall
be subject to voluntary or involuntary alienation, assignment or
transfer; provided, however, that nothing in this Section 15 shall
preclude Executive from designating a beneficiary or beneficiaries to
receive any benefit payable on his death.
16. Entire Agreement; Amendment. This Agreement shall supersede any and all
existing oral or written agreements, representations, or warranties between
Executive and PROMISTAR or any of its subsidiaries or affiliated entities
relating to the terms of Executive's employment. It may not be amended
except by a written agreement signed by both parties.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania applicable to
agreements made and to be performed in that Commonwealth, without regard to
its conflict of laws provisions.
18. Notices. Any notice, consent, request or other communication made or given
in connection with this Agreement shall be in writing and shall be deemed
to have been duly given when delivered or mailed by registered or certified
mail, return receipt
-14-
requested, or by facsimile or by hand delivery, to those listed below at
their following respective addresses or at such other address as each may
specify by notice to the others:
To PROMISTAR: To Executive:
PROMISTAR Financial Corporation At the address for Executive
PROMISTAR Plaza set forth below
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Chairman and Chief Executive Officer
19. Miscellaneous.
(a) Waiver. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a
waiver thereof or deprive that party of the right thereafter to
insist upon strict adherence to that term or any other term of this
Agreement.
(b) Separability. If any term or provision of this Agreement is declared
illegal or unenforceable by any court of competent jurisdiction and
cannot be modified to be enforceable, such term or provisions shall
immediately become null and void, leaving the remainder of this
Agreement in full force and effect.
(c) Headings. Section headings are used herein for convenience of
reference only and shall not affect the meaning of any provision of
this Agreement.
(d) Rules of Construction. Whenever the context so requires, the use of
the singular shall be deemed to include the plural and vice versa.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, and such counterparts will together constitute but one
Agreement.
-15-
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year set forth below.
PROMISTAR FINANCIAL CORPORATION: EXECUTIVE:
By: /s/ Xxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxx
------------------------- -------------------
Xxxx X. Xxxxxxxx
Chairman and Chief Executive Officer
Date: Jan. 24, 2001 Date: Jan. 24, 2001
------------- -------------
Address: 000 Xxxxxxx Xx.
--------------
Xxxxxxxxx, XX 00000
-------------------
-16-
ATTACHMENT A
[copy of Separation Agreement and Release]
-17-
