EXHIBIT 10.1
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (the "Agreement") is made this 20 day of April,
2004 and shall become effective (the "Effective Date") upon the Closing (as
defined in the Merger Agreement dated April 20, 2004 between Omega Financial
Corporation and Sun Bancorp, Inc. (the "Merger Agreement")), by and between
OMEGA FINANCIAL CORPORATION, a corporation organized under the laws of
Pennsylvania ("Employer") and XXXXXX X. XXXXXX, an individual ("Employee").
BACKGROUND
Effective as of the Effective Date, Employer is employing Employee in the
position of Senior Vice President-Head of Commercial Lending. In consideration
of Employee's services to Employer, Employer desires to provide for the payment
of certain compensation and other benefits to Employee upon the occurrence of
certain events, all as more fully set forth below.
In consideration of the mutual covenants and agreements herein contained,
and intending to be legally bound hereby, the parties agree as follows:
1. Term. The term of this Agreement shall commence on the Effective
Date and shall continue until November 2, 2004 (the "Initial Term"), unless
renewed or unless terminated earlier, as hereinafter provided. During the
Initial Term of this Agreement, the Board of Directors of Employer shall review
and monitor the performance of Employee, and prior to the end of the Initial
Term of this Agreement, i.e., prior to November 2, 2004 if the Board concludes
that it does not wish to extend the term of this Agreement beyond the expiration
of the Initial Term, the Board shall so notify Employee, in which event this
Agreement shall terminate at the end of the Initial Term. In default of such
notice by the Board of Directors, the Initial Term of this Agreement shall
automatically be extended for two (2) years so that the Term of this Agreement
shall then end on November 2, 2006. Thereafter, the term of this Agreement shall
continually be extended for successive renewal terms of one (1) year each unless
the Board of Directors notifies Employee prior to the end of the first 12-month
period of each such renewal term that it does not wish to extend the term of
this Agreement beyond the expiration of the then current two (2) year term, in
which event this Agreement shall terminate at the expiration of the then current
term. Hereafter in this Agreement, the Initial Term, plus all successive renewal
terms, shall be collectively referred to as the "Term." At no time shall the
current Term of this Agreement be for a period in excess of two (2) years.
Anything in this Agreement to the contrary notwithstanding, this Agreement
and the Term, if not previously terminated by the Board of Directors as set
forth above, shall terminate on the earliest of the following dates: (a) the
date Employee dies or becomes permanently disabled (i.e., upon his failure to
render services of the character which he had previously rendered to Employer,
because of his physical and mental illness or other incapacity beyond his
control for a continuous period of six months (or for shorter periods
aggregating six months in any twelve month period); (b) termination of
Employee's employment with Employer for Cause (as hereinafter defined); (c) upon
mutual agreement of Employer and Employee; (d) subject to
Section 2 hereof, termination by retirement or otherwise; or (e) upon the
Employee reaching sixty-five (65) years of age. In the event the Employee's
employment with Employer is terminated during the Term other than as set forth
in Section 2 hereof, the Employee shall have no rights or benefits under this
Agreement. For purposes of this Agreement, the term "Cause" shall mean (i)
conviction of Employee for any felony, fraud or embezzlement or (ii) Employee
failing or refusing to comply with the written policies or directives of
Employer's Board of Directors or the Employee being guilty of misconduct in
connection with the performance of his duties for Employer and the Employee
fails to cure such non-compliance or misconduct within twenty (20) days after
receiving written notice from Employer's Board of Directors specifying such
non-compliance or misconduct.
2. Termination. If during the Term, Employee's employment with Employer
is terminated as set forth below, Employer will pay to Employee the amounts set
forth in Sections 3 and 4 hereof and Employee shall be entitled to the benefits
set forth in Section 4 hereof:
(a) Employer terminates Employee's employment with Employer
without Cause; or
(b) the Employee terminates Employee's employment with Employer
(a) for any reason, whether with or without Cause, at any time within two (2)
years after a Change in Control of Employer (as defined hereinafter), or (b) due
to the fact that without Employee's consent and whether or not a Change in
Control of Employer has occurred, the nature and scope of Employee's authority
with Employer or the surviving or acquiring person are materially reduced to a
level below that which he enjoys on the date hereof, the duties or
responsibilities assigned to him are materially inconsistent with that which he
has on the date hereof, his then current base annual salary is materially
reduced to a level below that which he enjoys on the date hereof or at any time
hereafter (whichever may be greater), the fringe benefits which Employer
provides Employee on the date hereof or at any time hereafter (whichever may be
greater) are materially reduced, Employee's position or title with Employer or
the surviving or acquiring person is reduced from his current position or title
with Employer, or Employee's principal place of employment with Employer is
changed to a location greater than ninety (90) miles from his current principal
place of residence, provided, however, that for any termination by Employee
under this clause, (b) the Employee shall have first given Employer ten (10)
days' written notice of his intention to terminate his employment pursuant to
this subsection (ii), specifying the reason(s) for such termination, and
provided further, that Employer shall not have cured or remedied the reason(s)
specified in such notice prior to the expiration of such ten(10) day period.
For the purposes of this Agreement, a "Change in Control of Employer"
shall mean a change in control of Employer of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended, as enacted
and in force on the date hereof, whether or not Employer is subject to such
reporting requirement; provided that, without limitation, such a Change of
Control shall be deemed to have occurred if (i) any persons, other than those
persons in control of Employer on the date hereof, acquires the power, directly
or indirectly, to direct the management or policies of Employer or to vote
twenty-five percent (25%) or more of any class of voting securities of Employer;
or (ii) within any period of three (3) consecutive years during the Term
of this Agreement, individuals who at the beginning, of such period constitute
the Board of Directors of Employer cease for any reason to constitute at least a
majority thereof.
3. Compensation Payments to Employee. Commencing not later than thirty
(30) days after the date that Employee's employment with Employer is terminated
pursuant to Section 2 hereof (the "Termination Date") and subject to Employee's
compliance with Section 8 hereof, Employer shall pay annual compensation to
Employee for a period of three years following the Termination Date at a per
annum rate equal to one hundred percent (100%) of the amount of the Employee's
Highest Annual Compensation during the two (2) calendar years ending prior to
the Termination Date (the "Measurement Period"). For purposes of this Agreement,
the term "Highest Annual Compensation" shall mean the Employee's highest annual
cash compensation during the Measurement Period, including cash bonuses under
Employer's bonus plans, but excluding other fringe benefits. Employer agrees
that it will make the payments due under this Section 3 on the first day of each
month following the Termination Date in an amount equal to 1/12 of 100% of
Employee's Highest Annual Compensation. The payments and benefits required by
Sections 3 and 4 hereof shall continue despite the fact that, after the
Termination Date, the Term of this Agreement may have expired pursuant to
Section 1. The payments required by this Section 3 shall not be offset or
reduced by any income or earnings received from any other employment or other
activity the Employee may engage in during such three year period. Employee
shall have no duty to mitigate damages.
4. Other Benefits. In addition to the compensation set forth in Section
3 hereof, Employee shall be entitled to receive benefits from Employer as set
forth in this Section 4. For the periods set forth below, following the
Termination Date, Employee shall be entitled to participate in the following
programs of Employer:
(a) All medical, hospitalization and life insurance benefits shall
be continued for a period of three years except that should subsequent
employment be accepted during the three (3) year period following the
Termination Date, continuation of any medical, hospitalization and life
insurance benefits will be offset by coverages provided through the Employee's
subsequent employer.
(b) If not paid by a new employer, for a period of one (1) year
following the Termination Date, reimbursement for all reasonable relocation
expenses incurred by Employee in connection with securing new employment;
provided, however, in no event shall Employer be obligated to reimburse Employee
hereunder in excess of 1/3 of his Highest Annual Compensation.
5. Withholding. Employer may withhold from any 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. Source of Payment. Except as set forth in Section 14 hereof, all
payments provided under this Agreement shall be paid in cash from the general
funds of Employer, no special or separate fund shall be required to be
established by Employer and the Employee shall have no right, title or interest
whatsoever in or to any investment which Employer may make to aid Employer in
meeting its obligations hereunder. Nothing contained in this Agreement, and no
action taken pursuant to its provisions, shall create or be construed to create
a trust of any kind or a fiduciary relationship between Employer and Employee or
any other person.
7. (a) No Assignment. Neither this Agreement nor any right or interest
hereunder shall be assignable by Employee or his legal representatives without
Employer's prior written consent.
(b) Attachment. Except as required by law, the right to receive
payments under this Agreement shall not be subject to anticipation, sale,
encumbrance, charge, levy, or similar process or assignment by operation of law.
8. Confidentiality and Non-Competition. All payments to Employee under
this Agreement shall be subject to Employee's compliance with the provisions of
this Section 8. If Employee fails to comply with such provisions, his right to
any future payments under this Agreement shall terminate and Employer's
obligations under this Agreement to make such payments and provide such benefits
shall cease.
(a) Employee covenants and agrees that he will not, during the
Term of his employment and at any time thereafter, except with the express prior
written consent of Employer 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 the conduct or details of Employer's
business which he, acting reasonably, believes or should believe to be of a
confidential nature and the disclosure of which would not to be in Employer's
interest.
(b) Employee covenants and agrees that he will not, during the
Term of his employment and for a period of one (1) year thereafter, except with
the express prior written consent of Employer, directly or indirectly, whether
as 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 Employer.
(c) Employee covenants and agrees that he will not, during the
Term of his employment and for a period of one (1) year thereafter, except with
the express prior written consent of Employer, 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 activity in which the Corporation, Omega Bank, N.A. (the
"Bank") or any of their subsidiaries or affiliates are engaged during the term
of Employee's employment, in any county in which, at any time during Employee's
employment with the Corporation, the Bank or their subsidiaries or affiliates or
on the Termination Date, a branch, office or other facility of the Corporation,
Bank or any of their subsidiaries or affiliates is located, including counties
located outside the Commonwealth of Pennsylvania except that the foregoing shall
not prohibit Employee from owning as a shareholder less than 1% of the
outstanding stock of an issuer whose stock is publicly traded.
(d) The parties agree that any breach by Employee of any of the
covenants or agreements contained in this Section 8 will result in irreparable
injury to Employer for which money damages could not adequately compensate
Employer and therefore, in the event of any such breach, Employer 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 Employee and/or any other person involved therein from continuing
such breach. The existence of any claim or cause of action that Employee may
have against Employer or any other person (other than a claim for Employer's
breach of this Agreement for failure to make payments hereunder) shall not
constitute a defense or bar to the enforcement of such covenants. In the event
of an alleged breach by Employee of any of the covenants or agreements contained
in this Section 8, Employer shall continue any and all of the payments due
Employee under this Agreement until such time as a court shall enter a final and
non-appealable order finding such a breach; provided, however, that the
foregoing shall not preclude a court from ordering Employee to repay such
payments made to him for the period after the breach is determined to have
occurred or from ordering that payments hereunder be permanently terminated in
the event of a material and willful breach.
(e) If any portion of the covenants or agreements contained in
this Section 8, 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 agreement in this Section 8 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 8, the term "Employer" shall
include Employer, any successor to Employer under Section 9 hereof, and all
present and future direct and indirect subsidiaries and affiliates of Employer.
9. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon any corporate or other successor of Employer which may
acquire, directly or indirectly, by merger, consolidation, purchase, or
otherwise, all or substantially all of the assets of Employer, 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 Employer from consolidating or merging
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 Employer hereunder. Upon such consolidation, merger or transfer
of assets and assumption, the "Employer" as used herein, shall mean such other
person and this Agreement shall continue in full force and effect.
10. 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.
11. 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 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:
If to Employee, to:
Xxxxxx X. Xxxxxx
c/o Omega Financial Corporation
000 Xxxxxx Xxxxx
P. O. Xxx 000
Xxxxx Xxxxxxx, Xxxxxxxxxxxx 00000-0000
If to Employer, to:
Omega Financial Corporation
000 Xxxxxx Xxxxx
P. O. Xxx 000
Xxxxx Xxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Board of Directors
In all cases with a copy to:
Blank Rome LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx XX 00000-0000
Attention: Xxxxxxxxx X. Xxxxxx, Esquire
and to such other party or additional person or persons as either party shall
have designated to the other party in writing by like notice.
12. Jurisdiction. Employer and Employee consent to the exclusive
jurisdiction of the courts of the Commonwealth of Pennsylvania and the United
States District Court for the Central District of Pennsylvania in any and all
actions arising hereunder.
13. Acceleration. If Employer fails to pay Employee any of the amounts
due him under Sections 3 or 4 hereof, or fails to provide any of the benefits
due to Employee under Section 4 hereof, which nonpayment or nonprovision shall
continue for thirty (30) days after Employer receives written notice from
Employee of such failure to pay or provide benefits, as the case may be, the
Employee shall have the right to accelerate future payments of all sums due
Employee under Section 3 hereof, without discount.
14. Security.
(a) In order to secure Employer's obligations to Employee under
this Agreement, Employer shall, if and when requested by the Employee, cause a
reputable bank acceptable to Employee to issue a Letter of Credit, in the face
amount of at least the sum of three (3) times Employee's current base annual
salary on the date hereof plus $50,000 and substantially in the form attached
hereto as Exhibit "A" ("Letter of Credit:), to be issued to the
Employee as beneficiary, or in lieu thereof, establish a mutually acceptable
escrow arrangement. The Letter of Credit shall not expire sooner than one (1)
year after the date of its issuance. Employer shall maintain the Letter of
Credit in effect at all times during the Term and any other period of time
during which Employee is entitled to any compensation or benefits under either
Section 3 or 4 hereof by means of securing renewals of the Letter of Credit from
the same bank of by securing a new Letter of Credit from some other reputable
bank acceptable to Employee.
(b) Employee agrees that he will not present a draft under the
Letter of Credit for payment unless he shall have first made written demand on
Employer for direct payment of the amount sought and Employer shall not have
made full payment in cash to the Employee as required by this Agreement within
thirty (30) days after the date of delivery of the written demand. Employee
shall not draw any funds under the Letter of Credit in respect of costs or
expenses already reimbursed to him by Employer.
15. Indemnity. If Employer fails to pay Employee any of the amounts due
him under Sections 3 or 4 hereof or fails to provide Employee with any of the
benefits due him under Section 4 hereof, thirty (30) days after having received
written notice from Employee of such failure, the Employee shall be entitled to
full reimbursement from Employer for all costs and expenses (including, but not
limited to, reasonable attorneys' fees) incurred by Employee in enforcing his
rights under this Agreement.
16. General Provisions.
(a) Each of Employer's obligations and liabilities hereunder shall
not be affected or impaired by the unenforceability, invalidity, or illegality
of any other term, condition, covenant, obligation or agreement under this
Agreement, whether under the National Bank Act or otherwise.
(b) 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 including, without limitation, the
Employment Agreement dated October 31, 2002 between Employee and Sun Bancorp,
Inc. as amended to the Effective Date which Employee agrees is hereby
terminated. Employee hereby waives any and all rights he may have under such
employment agreement including, without limitation, under Sections 6, 7, 8 and
15 thereof. No amendment, supplement, waiver or termination 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 Employer and Employee 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.
(c) This Agreement shall not limit or infringe upon the right of
Employer to terminate the employment of Employee at any time for any reason, nor
upon the right of Employee to terminate his employment with Employer.
(d) 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.
(e) 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.
(f) 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 of further exercise thereof or the exercise
of any other rights, power or remedy.
(g) 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.
(h) 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.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Severance Agreement as of the date first above written.
EMPLOYER:
OMEGA FINANCIAL CORPORATION
Attest: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxx
--------------------------------- -------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxx X. Xxx
Title: Exec. Vice President & COO Title:Chairman, President & CEO
EMPLOYEE:
Witness:/s/ Xxxxxx X. XxXxxxxxx /s/ Xxxxxx X. Xxxxxx
--------------------------------- ------------------------------
Name: Xxxxxx X. XxXxxxxxx Xxxxxx X. Xxxxxx
