ABINGTON BANCORP, INC. AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.1
ABINGTON
BANCORP, INC.
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
This
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (this “Agreement”), is made and entered into as of the 28th day
of November
2007, between Abington Bancorp, Inc. (the “Corporation”), a Pennsylvania
corporation, and Xxxxxx X. Xxxxx (the “Executive”).
WITNESSETH:
WHEREAS,
the Executive is currently employed as President and Chief Executive Officer
of
the Corporation, and the Executive and the Corporation have previously
entered
into an employment agreement dated December 29, 2006 (the “Prior
Agreement”);
WHEREAS,
the Executive also is currently employed as President and Chief Executive
Officer of Abington Savings Bank, a Pennsylvania chartered stock-form savings
bank and wholly owned subsidiary of the Corporation doing business as Abington
Bank (the “Bank”);
WHEREAS,
the Corporation and the Bank are referred to together herein as the
“Employers”;
WHEREAS,
the Corporation desires to amend and restate the Prior Agreement in order
to
make changes to comply with Section 409A of the Code, as well as certain
other
changes;
NOW
THEREFORE, in consideration of the mutual agreements herein contained,
and upon
the other terms and conditions hereinafter provided, the Corporation and
the
Executive hereby agree as follows:
1. Definitions. The
following words and terms shall have the meanings set forth below for the
purposes of this Agreement:
(a) Base
Salary. “Base Salary” shall have the meaning set forth in
Section 3(a) hereof.
(b) Cause. Termination
of the Executive's employment for “Cause” shall mean termination because of
personal dishonesty, incompetence, willful misconduct, breach of fiduciary
duty
involving personal profit, intentional failure to perform stated duties,
willful
violation of any law, rule or regulation (other than traffic violations
or
similar offenses) or final cease-and-desist order or material breach of
any
provision of this Agreement. For purposes of this paragraph, no act
or failure to act on the part of the Executive shall be considered "willful"
unless done, or omitted to be done, by the Executive not in good faith
and
without reasonable belief that the Executive’s action or omission was in the
best interests of the Employers.
(c) Change
in Control. “Change in Control” shall mean a change in the
ownership of the Corporation or the Bank, a change in the effective control
of
the Corporation or the Bank or a change in the ownership of a substantial
portion of the assets of the Corporation or the Bank, in each case as provided
under Section 409A of the Code and the regulations thereunder.
(d) Code. “Code”
shall mean the Internal Revenue Code of 1986, as amended.
(e) Date
of Termination. “Date of Termination” shall mean (i) if the
Executive's employment is terminated for Cause, the date on which the Notice
of
Termination is given, and (ii) if the Executive's employment is terminated
for
any other reason, the date specified in such Notice of Termination.
(f) Disability. “Disability”
shall mean the Executive (i) is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for
a
continuous period of not less than 12 months, or (ii) is, by reason of
any
medically determinable physical or mental impairment which can be expected
to
result in death or can be expected to last for a continuous period of not
less
than 12 months, receiving income replacement benefits for a period of not
less
than three months under an accident and health plan covering employees
of the
Employers.
(g) Good
Reason. Termination by the Executive of the Executive's
employment for “Good Reason” shall mean termination by the Executive based on
the occurrence of any of the following events:
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(i)
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any
material breach of this Agreement by the Corporation, including
without
limitation any of the following: (A) a material diminution in
the
Executive’s base compensation, (B) a material diminution in the
Executive’s authority, duties or responsibilities, or (C) any requirement
that the Executive report to a corporate officer or employee
of the
Employers instead of reporting directly to the Boards of Directors
of the
Employers, or
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(ii)
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any
material change in the geographic location at which the Executive
must
perform his services under this
Agreement;
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provided,
however, that prior to any termination of employment for Good Reason, the
Executive must first provide written notice to the Employers within ninety
(90)
days of the initial existence of the condition, describing the existence
of such
condition, and the Employers shall thereafter have the right to remedy
the
condition within thirty (30) days of the date the Employers received the
written
notice from the Executive. If the Employers remedy the condition
within such thirty (30) day cure period, then no Good Reason shall be deemed
to
exist with respect to such condition. If the Employers do not remedy
the condition within such thirty (30) day cure period, then the Executive
may
deliver a Notice of Termination for Good Reason at any time within sixty
(60)
days following the expiration of such cure period.
(h) IRS. IRS
shall mean the Internal Revenue Service.
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(i) Notice
of Termination. Any purported termination of the Executive's
employment by the Corporation for any reason, including without limitation
for
Cause, Disability or Retirement, or by the Executive for any reason, including
without limitation for Good Reason, shall be communicated by a written
“Notice
of Termination” to the other party hereto. For purposes of this
Agreement, a “Notice of Termination” shall mean a dated notice which (i)
indicates the specific termination provision in this Agreement relied upon,
(ii)
sets forth in reasonable detail the facts and circumstances claimed to
provide a
basis for termination of the Executive's employment under the provision
so
indicated, (iii) specifies a Date of Termination, which shall be not less
than
fifteen (15) nor more than ninety (90) days after such Notice of Termination
is
given, except in the case of the Corporation's termination of the Executive's
employment for Cause, which shall be effective immediately, and (iv) is
given in
the manner specified in Section 11 hereof.
(j) Retirement. “Retirement”
shall mean voluntary termination by the Executive in accordance with the
Employers' retirement policies, including early retirement, generally applicable
to their salaried employees.
2. Titles;
Term of Employment.
(a) The
Corporation hereby employs the Executive as President and Chief Executive
Officer and the Executive hereby accepts said employment and agrees to
render
such services to the Corporation on the terms and conditions set forth
in this
Agreement. During the term of this Agreement, the Executive shall
perform such executive services for the Corporation as may be consistent
with
his titles and from time to time assigned to him by the Corporation's Board
of
Directors. The Executive shall also keep himself up to date with and
familiar with developments in the thrift industry and attend substantially
all
of the regular monthly meetings of the Board of Directors and periodic
meetings
of the various committees of the Board, as requested. He shall work at
the main
office of the Corporation, as that shall be designated from time to
time.
(b) The
term of employment under this Agreement shall be for three years beginning
on
the date of this Agreement and ending on the third anniversary of the date
of
this Agreement, plus such extensions, if any, as are provided below (the
"Employment Period"). Except as provided in Section 2(c), beginning
on the date of this Agreement, on each day during the Employment Period,
the
Employment Period shall automatically be extended for one additional day,
unless
either the Corporation, on the one hand, or the Executive, on the other
hand,
elects not to extend the Agreement further by giving written notice thereof
to
the other party, in which case the Employment Period shall end on the third
anniversary of the date on which such written notice is given. Upon termination
of the Executive's employment with the Corporation for any reason whatsoever,
any daily extensions provided pursuant to this Section 2(b), if not theretofore
discontinued, shall automatically cease. Prior to December 31, 2007 and
each
December 31 thereafter, the Board of Directors of the Corporation shall
consider
and review (with appropriate corporate documentation thereof, and after
taking
into account all relevant factors, including the Executive's performance
hereunder) the daily extensions of the term of this Agreement, and the
Board of
Directors shall determine whether to permit such daily extensions to
continue.
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(c) Nothing
in this Agreement shall be deemed to prohibit the Corporation at any time
from
terminating the Executive's employment during the Employment Period with
or
without notice for any reason, provided that the relative rights and obligations
of the Corporation and the Executive in the event of any such termination
shall
be determined under this Agreement.
3. Compensation
and Benefits.
(a) The
Employers shall compensate and pay the Executive for his services during
the
term of this Agreement at a minimum base salary of $295,000 per year (“Base
Salary”). The Base Salary may be increased from time to time in such amounts as
may be determined by the Boards of Directors of the Employers and may not
be
decreased without the Executive's express written consent. In
addition to his Base Salary, the Executive shall be entitled to receive
during
the term of this Agreement such bonus payments as may be determined by
the
Boards of Directors of the Employers. The salary under this Section
3(a) shall be payable to the Executive not less frequently than monthly
or other
than in conformity with the Employers’ policy in relation to salaried executive
employees.
(b) During
the term of this Agreement, the Executive shall be entitled to participate
in
and receive the benefits of any pension or other retirement benefit plan,
profit
sharing, stock option, employee stock ownership, or other plans, benefits
and
privileges given to employees and executives of the Employers, to the extent
commensurate with his then duties and responsibilities, as fixed by the
Boards
of Directors of the Employers. The Corporation shall not make any
changes in such plans, benefits or privileges which would adversely affect
the
Executive's rights or benefits thereunder, unless such change occurs pursuant
to
a program applicable to all executive officers of the Corporation and does
not
result in a proportionately greater adverse change in the rights of or
benefits
to the Executive as compared with any other executive officer of the
Corporation. Nothing paid to the Executive under any plan or
arrangement presently in effect or made available in the future shall be
deemed
to be in lieu of the salary payable to the Executive pursuant to Section
3(a)
hereof.
(c) During
the term of this Agreement, the Executive shall be entitled to paid annual
vacation in accordance with the policies as established from time to time
by the
Boards of Directors of the Employers. The Executive shall not be
entitled to receive any additional compensation from the Employers for
failure
to take a vacation, nor shall the Executive be able to accumulate unused
vacation time from one year to the next, except to the extent authorized
by the
Boards of Directors of the Employers.
(d) The
Executive's compensation, benefits and expenses payable under this Agreement
(including but not limited to Sections 3, 4 and 5 hereof but excluding
Section 6
hereof) shall be paid by the Corporation and the Bank in the same proportion
as
the time and services actually expended by the Executive on behalf of each
respective Employer; provided, however, that if the Executive devotes less
than
10% of his time to the Corporation, such amounts shall be paid by the
Bank.
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4. Expenses. The
Employers shall reimburse the Executive or otherwise provide for or pay
for all
reasonable expenses incurred by the Executive in furtherance of or in connection
with the business of the Employers, including, but not by way of limitation,
automobile expenses and traveling expenses, and all reasonable entertainment
expenses, subject to such reasonable documentation and other limitations
as may
be established by the Boards of Directors of the Employers. If such
expenses are paid in the first instance by the Executive, the Employers
shall
reimburse the Executive therefor. Such reimbursement shall be paid
promptly by the Employers and in any event no later than March 15 of the
year
immediately following the year in which such expenses were
incurred.
5. Termination.
(a) General. The
Corporation shall have the right, at any time upon prior Notice of Termination,
to terminate the Executive's employment hereunder for any reason, including
without limitation termination for Cause, Disability or Retirement, and
the
Executive shall have the right, upon prior Notice of Termination, to terminate
his employment hereunder for any reason.
(b) Termination
for Cause or Voluntary Resignation. In the event that (i)
the Executive's employment is terminated by the Corporation for Cause or
(ii)
the Executive terminates his employment hereunder other than for Disability,
Retirement, death or Good Reason, the Executive shall have no right pursuant
to
this Agreement to compensation or other benefits for any period after the
applicable Date of Termination.
(c) Disability
Benefits. In the event the Executive’s employment is
terminated during the Employment Period as a result of Disability, then
the
Executive shall be entitled to receive annual disability benefits which
are at
least equal to 60% of his annual Base Salary as in effect immediately prior
to
his termination of employment. If the disability benefits payable to the
Executive pursuant to short-term and long-term disability policies of the
Employers, together with other insurance, retirement and medical benefits
provided by the Employers and any Social Security disability benefits provided
to the Executive, do not equal at least 60% of the Executive’s Base Salary, then
the Employers shall pay to the Executive a supplemental disability benefit
each
year equal to (i) 60% of the Executive’s Base Salary, minus (ii) the sum of (A)
the disability benefits payable to the Executive pursuant to disability
policies
of the Employers, (B) the other insurance, retirement and medical benefits
provided by the Employers to the Executive, and (c) any Social Security
disability benefits provided to the Executive. The supplemental disability
benefits shall be paid to the Executive in as equal as possible monthly
installments on the first business day of each month, subject to adjustment
each
month as the amounts in clause (ii) above change, and shall be paid until
the
Executive reaches his seventieth (70th)
birthday.
(d) Death
Benefits. In the event that the Executive dies during the
Employment Period, then the Employers shall pay to his spouse (or to his
estate
if his spouse is no longer living or if he is no longer married) a lump
sum cash
payment equal to the present value of the Base Salary that would have been
paid
to the Executive for the thirty-six (36) months following the date of his
death,
based on the Base Salary in effect at the time of death. The present
value shall be calculated using a discount rate equal to the applicable
federal
rate compounded monthly (determined under Section 1274(d) of the Code)
as
published by the Internal Revenue Service for the month in which the date
of
death occurs.
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(e) Retirement
Benefits. In the event
the Executive’s employment is terminated during the Employment Period due to
Retirement, then the Executive shall be entitled to benefits under any
pension
or other retirement plans of the Employers covering the Executive in lieu
of any
payments or other benefits under this Agreement subsequent to the date
of
Retirement.
(f) Involuntary
or Good Reason Termination Prior to a Change in Control. In
the event that (i) the Executive's employment is terminated by the Corporation
for other than Cause, Disability, Retirement or the Executive's death or
(ii)
such employment is terminated by the Executive for Good Reason, in each
case
prior to a Change in Control, then the Corporation shall:
(A) pay
to the Executive, in a lump sum as of the Date of Termination, a cash severance
amount equal to the product of (i) the sum of the Base Salary per year
then in
effect and the highest cash bonus paid in the prior three calendar years,
in
each case the portion thereof paid by the Corporation, multiplied by (ii)
three
(3),
(B) maintain
and provide for a period ending at the earlier of (i) the expiration of
the
Employment Period or (ii) the date of the Executive's full-time employment
by
another employer (provided that the Executive is entitled under the terms
of
such employment to benefits substantially similar to those described in
this
subparagraph (B)), with the Executive responsible for paying the same share
of
any premiums, co-payments or deductibles as if he was still an employee,
the
Executive's continued participation in all group insurance, life insurance,
health and accident, and disability insurance coverage offered by the
Corporation in which the Executive was participating immediately prior
to the
Date of Termination; provided that any insurance premiums payable by the
Corporation or any successors pursuant to this Section 5(f)(B) shall be
payable
at such times and in such amounts as if the Executive was still an employee
of
the Corporation, subject to any increases in such amounts imposed by the
insurance company or COBRA, and the amount of insurance premiums required
to be
paid by the Corporation in any taxable year shall not affect the amount
of
insurance premiums required to be paid by the Corporation in any other
taxable
year; and provided further that if the Executive’s participation in any group
insurance plan is barred, the Corporation shall arrange to provide the
Executive
with insurance benefits substantially similar to those which the Executive
was
entitled to receive under such group insurance plan at no additional cost
to the
Executive; and
(C) pay
to the Executive, in a lump sum as of the Date of Termination, a cash amount
equal to the projected cost to the Corporation of providing benefits to
the
Executive for a period of twenty-four (24) months pursuant to any other
employee
benefit plans, programs or arrangements offered by the Corporation in which
the
Executive was entitled to participate immediately prior to the Date of
Termination (other than cash bonus plans, retirement plans or stock compensation
plans of the Bank or the Corporation), with the projected cost to the
Corporation to be based on the costs incurred for the calendar year immediately
preceding the year in which the Date of Termination occurs and with any
automobile-related costs to exclude any depreciation on Bank-owned
automobiles.
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(g) Involuntary
or Good Reason Termination Concurrently with or Subsequent to a
Change in Control. In the event that (i) the Executive's
employment is terminated by the Corporation for other than Cause, Disability,
Retirement or the Executive's death or (ii) such employment is terminated
by the
Executive for Good Reason, in each case either concurrently with or subsequent
to a Change in Control, then the Corporation shall:
(A) pay
to the Executive, in a lump sum as of the Date of Termination, a cash severance
amount equal to 2.99 times that portion of the Executive’s “base amount” (as
defined in Section 280G(b)(3) of the Code) paid by the Corporation,
(B) maintain
and provide for a period ending at the earlier of (i) thirty-six (36) months
after the Date of Termination or (ii) the date of the Executive's full-time
employment by another employer (provided that the Executive is entitled
under
the terms of such employment to benefits substantially similar to those
described in this subparagraph (B)), with the Executive responsible for
paying
the same share of any premiums, co-payments or deductibles as if he was
still an
employee, the Executive's continued participation in all group insurance,
life
insurance, health and accident, and disability insurance coverage offered
by the
Corporation
in
which the Executive was participating immediately prior to the Date of
Termination; provided that any insurance premiums payable by the Corporation
or
any successors pursuant to this Section 5(g)(B) shall be payable at such
times
and in such amounts as if the Executive was still an employee of the Corporation,
subject to any increases in such amounts imposed by the insurance company
or
COBRA, and the amount of insurance premiums required to be paid by the
Corporation
in
any taxable year shall not affect the amount of insurance premiums required
to
be paid by the Corporation
in
any other taxable year; and provided further that if the Executive’s
participation in any group insurance plan is barred, the Corporation
shall arrange to provide the Executive with insurance benefits substantially
similar to those which the Executive was entitled to receive under such
group
insurance plan at no additional cost to the Executive; and
(C) pay
to the Executive, in a lump sum as of the Date of Termination, a cash amount
equal to the projected cost to the Corporation
of
providing benefits to the Executive for a period of thirty-six (36) months
pursuant to any other employee benefit plans, programs or arrangements
offered
by the Corporation
in
which the Executive was entitled to participate immediately prior to the
Date of
Termination (other than cash bonus plans, retirement plans or stock compensation
plans of the Bank
or
the Corporation), with the projected cost to the Corporation
to
be based on the costs incurred for the calendar year immediately preceding
the
year in which the Date of Termination occurs and with any automobile-related
costs to exclude any depreciation on Bank-owned automobiles.
6. Payment
of Additional Benefits under Certain Circumstances.
(a) If
the payments and benefits pursuant to Section 5 hereof, either alone or
together
with other payments and benefits which the Executive has the right to receive
from the Employers (including, without limitation, the payments and benefits
which the Executive would have the right to receive from the Bank pursuant
to
Section 5 of the Agreement between the Bank and the Executive dated as
of the
date hereof (“Bank Agreement”), before giving effect to any reduction in such
amounts pursuant to Section 6 of the Bank Agreement), would constitute
a
“parachute payment” as defined in Section 280G(b)(2) of the Code (the “Initial
Parachute Payment,” which includes the amounts paid pursuant to clause (i)
below), then the Corporation shall pay to the Executive, in a lump sum
within
five business days after the Date of Termination, a cash amount equal to
the sum
of the following:
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(i) the
amount by which the payments and benefits that would have otherwise been
paid by
the Bank to the Executive pursuant to Section 5 of the Bank Agreement are
reduced by the provisions of Section 6 of the Bank Agreement;
(ii) twenty
(20) percent (or such other percentage equal to the tax rate imposed by
Section
4999 of the Code) of the amount by which the Initial Parachute Payment
exceeds
the Executive's “base amount” from the Employers, as defined in Section
280G(b)(3) of the Code, with the difference between the Initial Parachute
Payment and the Executive's base amount being hereinafter referred to as
the
“Initial Excess Parachute Payment”; and
(iii) such
additional amount (tax allowance) as may be necessary to compensate the
Executive for the payment by the Executive of state, local and federal
income
and excise taxes on the payment provided under clause (ii) above and on
any
payments under this clause (iii). In computing such tax allowance,
the payment to be made under clause (ii) above shall be multiplied by the
“gross
up percentage” (“GUP”). The GUP shall be determined as
follows:
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GUP
=
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Tax
Rate
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1-Tax
Rate
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The
Tax
Rate for purposes of computing the GUP shall be the highest marginal federal,
state and local income and employment-related tax rate (including Social
Security and Medicare taxes), including any applicable excise tax rate,
applicable to the Executive in the year in which the payment under clause
(ii)
above is made, and shall also reflect the phase-out of deductions and the
ability to deduct certain of such taxes.
(b) Notwithstanding
the foregoing, if it shall subsequently be determined in a final judicial
determination or a final administrative settlement to which the Executive
is a
party that the actual excess parachute payment as defined in Section 280G(b)(1)
of the Code is different from the Initial Excess Parachute Payment (such
different amount being hereafter referred to as the “Determinative Excess
Parachute Payment”), then the Corporation's independent tax counsel or
accountants shall determine the amount (the “Adjustment Amount”) which either
the Executive must pay to the Corporation or the Corporation must pay to
the
Executive in order to put the Executive (or the Corporation, as the case
may be)
in the same position the Executive (or the Corporation, as the case may
be)
would have been if the Initial Excess Parachute Payment had been equal
to the
Determinative Excess Parachute Payment. In determining the Adjustment
Amount, the independent tax counsel or accountants shall take into account
any
and all taxes (including any penalties and interest) paid by or for the
Executive or refunded to the Executive or for the Executive's
benefit. As soon as practicable after the Adjustment Amount has been
so determined, and in no event more than thirty (30) days after the Adjustment
Amount has been so determined, the Corporation shall pay the Adjustment
Amount
to the Executive or the Executive shall repay the Adjustment Amount to
the
Corporation, as the case may be.
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(c) In
each calendar year that the Executive receives payments of benefits that
constitute a parachute amount, the Executive shall report on his state
and
federal income tax returns such information as is consistent with the
determination made by the independent tax counsel or accountants of the
Corporation as described above. The Corporation shall indemnify and
hold the Executive harmless from any and all losses, costs and expenses
(including without limitation, reasonable attorneys' fees, interest, fines
and
penalties) which the Executive incurs as a result of so reporting such
information, with such indemnification to be paid by the Corporation to
the
Executive as soon as practicable and in any event no later than March 15
of the
year immediately following the year in which the amount subject to
indemnification was determined. The Executive shall promptly notify
the Corporation in writing whenever the Executive receives notice of the
institution of a judicial or administrative proceeding, formal or informal,
in
which the federal tax treatment under Section 4999 of the Code of any amount
paid or payable under this Section 6 is being reviewed or is in
dispute. The Corporation shall assume control at its expense over all
legal and accounting matters pertaining to such federal tax treatment (except
to
the extent necessary or appropriate for the Executive to resolve any such
proceeding with respect to any matter unrelated to amounts paid or payable
pursuant to this Section 6) and the Executive shall cooperate fully with
the
Corporation in any such proceeding. The Executive shall not enter
into any compromise or settlement or otherwise prejudice any rights the
Corporation may have in connection therewith without the prior consent
of the
Corporation.
7. Mitigation;
Exclusivity of Benefits.
(a) The
Executive shall not be required to mitigate the amount of any benefits
hereunder
by seeking other employment or otherwise, nor shall the amount of any such
benefits be reduced by any compensation earned by the Executive as a result
of
employment by another employer after the Date of Termination or otherwise,
except as set forth in Sections 5(f) and (g) above.
(b) The
specific arrangements referred to herein are not intended to exclude any
other
benefits which may be available to the Executive upon a termination of
employment with the Employers pursuant to employee benefit plans of the
Employers or otherwise.
8. Withholding. All
payments required to be made by the Corporation hereunder to the Executive
shall
be subject to the withholding of such amounts, if any, relating to tax
and other
payroll deductions as the Corporation may reasonably determine should be
withheld pursuant to any applicable law or regulation.
9. Standards
and Non-Competition. The Executive shall perform the
Executive's duties and responsibilities under this Agreement in accordance
with
such reasonable standards as may be established from time to time by the
Board
of Directors of the Corporation. The reasonableness of such standards shall
be
measured against standards for executive performance generally prevailing
in the
thrift industry. The Executive agrees that during the term of his employment
hereunder, except with the express consent of the Employers, he will not,
directly or indirectly, engage or participate in, become a trustee or director
of, or render advisory or other services for any other firm, corporation,
business entity or business enterprise that accepts deposits from the public
or
makes loans to the public (a “Competing Business”), provided, however, that the
Executive shall not be precluded or prohibited from owning passive investments
in any Competing Business so long as such ownership does not require him
to
devote time to or participate in the management of the business in which
he has
invested. If the Executive’s employment is terminated by the Executive without
Good Reason or by the Employers for Cause, then the Executive shall not
become
an officer, employee, director, trustee or partner of or render services
to any
Competing Business (except for passive investments of less than 5% of the
Competing Business) which accept deposits and/or makes loans to the public
within the marketing area of the Employers as it exists at the time of
the
Executive's termination for a period of two (2) years following such termination
of employment; and if the Executive is employed by a Competing Business
which
opens an office and/or extends its operations into the prohibited marketing
area
of the Employers within two (2) years following the Executive's termination
of
employment with the Employer, he must terminate his employment with the
Competing Business until the two (2) year period has expired. Notwithstanding
anything to the contrary contained herein, during the term of this Agreement,
the Executive shall have no employment contract or other written or oral
agreement concerning employment as an officer or employee with any entity
or
person other than the Employers. Nothing contained in this Agreement shall
in
any way restrict the right of the Executive to serve as a director, officer,
trustee or in any similar capacity with respect to any not-for-profit
organization, any fraternal organization or any church or religious
organization, or as a trustee or fiduciary with respect to any trust, will
or
estate. The Employers’ marketing area is each county in which the Bank actively
solicits deposits and mortgage loans. This Section 9 shall not be
applicable if the Executive’s employment is terminated following a Change in
Control for any reason other than for Cause.
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10. Assignability. The
Corporation may assign this Agreement and its rights and obligations hereunder
in whole, but not in part, to any corporation, bank or other entity with
or into
which the Corporation may hereafter merge or consolidate or to which the
Corporation may transfer all or substantially all of its assets, if in
any such
case said corporation, bank or other entity shall by operation of law or
expressly in writing assume all obligations of the Corporation hereunder
as
fully as if it had been originally made a party hereto, but may not otherwise
assign this Agreement or its rights and obligations hereunder. The
Executive may not assign or transfer this Agreement or any rights or obligations
hereunder.
11. Notice. For
the purposes of this Agreement, notices and all other communications provided
for in this Agreement shall be in writing and shall be deemed to have been
duly
given when delivered or mailed by certified or registered mail, return
receipt
requested, postage prepaid, addressed to the respective addresses set forth
below:
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To the Corporation: |
Secretary
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Abington
Bancorp, Inc.
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||
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000
Xxx Xxxx Xxxx
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||
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Xxxxxxxxxx,
Xxxxxxxxxxxx 00000
|
10
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To the Bank: |
Secretary
|
|
Abington
Savings Bank
|
||
|
000
Xxx Xxxx Xxxx
|
||
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Xxxxxxxxxx,
Xxxxxxxxxxxx 00000
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||
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To the Executive: |
Xxxxxx
X. Xxxxx
|
|
At
the address last appearing on the personnel records of the
Employers
|
12. Amendment;
Waiver. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed
to
in writing signed by the Executive and such officer or officers as may
be
specifically designated by the Board of Directors of the Corporation to
sign on
its behalf. No waiver by any party hereto at any time of any breach
by any other party hereto of, or compliance with, any condition or provision
of
this Agreement to be performed by such other party shall be deemed a waiver
of
similar or dissimilar provisions or conditions at the same or at any prior
or
subsequent time. In addition, notwithstanding anything in this
Agreement to the contrary, the Corporation may amend in good faith any
terms of
this Agreement, including retroactively, in order to comply with Section
409A of
the Code.
13. Governing
Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United
States
where applicable and otherwise by the substantive laws of the Commonwealth
of
Pennsylvania.
14. Invalidity;
Enforceability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability
of
any other provision of this Agreement, which shall remain in full force
and
effect. Any provision in this Agreement which is prohibited or unenforceable
in
any jurisdiction shall, as to such jurisdiction, be ineffective only to
the
extent of such prohibition or unenforceability without invalidating or
affecting
the remaining provisions hereof, and any such prohibition or unenforceability
in
any jurisdiction shall not invalidate or render unenforceable such provision
in
any other jurisdiction.
15. Arbitration. Any
controversy or claim arising out of or relating to this Agreement, or the
breach
thereof, shall be settled by arbitration in accordance with the rules then
in
effect for the American Arbitration Association, Philadelphia, Pennsylvania,
and
judgment upon the award rendered may be entered in any court having jurisdiction
thereof.
16. Nature
of Obligations. Nothing contained herein shall create or
require the Corporation to create a trust of any kind to fund any benefits
which
may be payable hereunder, and to the extent that the Executive acquires
a right
to receive benefits from the Corporation hereunder, such right shall be
no
greater than the right of any unsecured general creditor of the
Corporation.
17. Headings. The
section headings contained in this Agreement are for reference purposes
only and
shall not affect in any way the meaning or interpretation of this
Agreement.
11
18. Changes
in Statutes or Regulations. If any statutory or regulatory
provision referenced herein is subsequently changed or re-numbered, or
is
replaced by a separate provision, then the references in this Agreement
to such
statutory or regulatory provision shall be deemed to be a reference to
such
section as amended, re-numbered or replaced.
19. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together will constitute one
and the
same instrument.
20. Regulatory
Prohibition. Notwithstanding any other provision of this
Agreement to the contrary, any payments made to the Executive pursuant
to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with Section 18(k) of the FDIA (12 U.S.C. §1828(k)) and 12 C.F.R. Part
359.
21. Payment
of Costs and Legal Fees and Reinstatement of Benefits. In
the event any dispute or controversy arising under or in connection with
the
Executive’s termination is resolved in favor of the Executive, whether by
judgment, arbitration or settlement, the Executive shall be entitled to
the
payment of (a) all legal fees incurred by the Executive in resolving such
dispute or controversy, and (b) any back-pay, including Base Salary, bonuses
and
any other cash compensation, fringe benefits and any compensation and benefits
due to the Executive under this Agreement, within thirty (30) days following
the
date such judgment, arbitration or settlement becomes final and
non-appealable.
22. Entire
Agreement. This Agreement embodies the entire agreement
between the Corporation and the Executive with respect to the matters agreed
to
herein. All prior agreements between the Corporation and the
Executive with respect to the matters agreed to herein, including but not
limited to the Prior Agreement, are hereby superseded and shall have no
force or
effect. Notwithstanding the foregoing, nothing contained in this
Agreement shall affect the agreement of even date being entered into between
the
Bank and the Executive.
[Signature
page follows]
12
IN
WITNESS WHEREOF, this Agreement has been executed as of the date first
written
above.
THIS
AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED
BY THE
PARTIES.
|
Attest:
|
ABINGTON
BANCORP, INC.
|
|||
| /s/ Xxxxx Xxxxxxxxxx |
By:
|
/s/ Xxxxxx X. Xxxxxxxxxxx, Xx. | ||
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Name:
|
Xxxxxx X. Xxxxxxxxxxx, Xx. | |||
|
Title:
|
Director | |||
|
EXECUTIVE
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxxx | ||
|
Xxxxxx
X. Xxxxx
|
|||
13
