EXHIBIT 10.6
SEVERANCE AGREEMENT
MADE as of this 17th day of October, 2000 by and between Xxxxxx Financial
Corporation, a Pennsylvania corporation with offices at Xxx Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxx 00000 (together with its subsidiaries and affiliates,
collectively, the "Company") and Xxxxx X. Xxxx, an adult individual who resides
at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000 ("Key Employee").
BACKGROUND
Key Employee is considered to be an employee who has made, and is expected
to continue to make a valuable contribution to the financial performance of the
Company.
While the Company remains firmly committed to its policy of remaining a
strong, independent regional bank holding company, it recognizes that it might
nevertheless be acquired as a result of an unsolicited takeover attempt or in a
negotiated transaction. It is possible that if the Company would be acquired,
the acquiror would terminate Key Employee in order to realize certain cost
savings and that any severance benefits payable to Key Employee might be
inadequate to compensate Key Employee for loss of employment.
The Board of Directors of the Company has carefully considered this problem
and has determined that it should be addressed. Specifically, the Board of
Directors has concluded that basic financial protection should be provided to
Key Employee in the form of certain limited severance benefits payable in the
event that Key Employee is discharged or is compelled to resign following, and
for reasons relating to a change in control of the Company.
The purpose of this Agreement is to define these severance benefits and to
specify the conditions under which they are to be paid. This Agreement is not
intended to affect the terms of Key Employee's employment in the absence of a
change in control of the Company. Accordingly, although this Agreement will take
effect upon execution as a binding legal obligation of the Company, it will
become operative only upon a change in control of the Company, as that concept
is defined below.
WITNESSETH:
NOW, THEREFORE, in consideration of Key Employee's continuing service to
the Company and of the mutual covenants and undertakings hereinafter set forth,
the parties hereto, intending to be legally bound, hereby agree as follows:
1. UNDERTAKING OF THE COMPANY
The Company shall provide to Key Employee the severance benefits specified
in Paragraph 6 below in the event that any time within twelve (12) months
following a Change in Control of the Company:
(a) Key Employee is discharged by the Company, other than for Cause
pursuant to Paragraph 3 below or for Disability pursuant to Paragraph
4 below; or
(b) Key Employee resigns from the Company for Good Reason pursuant to
Paragraph 5 below.
2. CHANGE IN CONTROL
(a) For purposes of this Agreement, a "Change in Control" of the Company
shall mean a change in control of Xxxxxx Financial Corporation of the
kind that would be required to be reported in response to Item 1 of
Securities and Exchange Commission Form 8-K promulgated under the
Securities Exchange Act of 1934 and as in effect on the date hereof.
(b) Without limitation of the foregoing, a Change in Control of the
Company shall be deemed to have occurred upon the occurrence of any of
the following events:
(1) Any person or group of persons acting in concert, shall have
acquired, directly or indirectly, beneficial ownership of 20
percent or more of the outstanding shares of the voting
stock of Xxxxxx Financial Corporation;
(2) The composition of the Board of Directors of Xxxxxx
Financial Corporation shall have changed such that during
any period of two consecutive years during the term of this
Agreement, the persons who at the beginning of such period
were members of the Board of Directors, unless the
nomination or election of each director who was not a
director at the beginning of such period was approved in
advance by directors representing not less than two-thirds
of the directors then in office who were directors at the
beginning of the period; or
(3) Xxxxxx Financial Corporation shall be merged or consolidated
with or its assets purchased by another corporation and as a
result of such merger, consolidation or sale of assets, less
than a majority of the outstanding voting stock of the
surviving, resulting or purchasing corporation is owned,
immediately after the transaction, by the holders of the
voting stock of Xxxxxx Financial Corporation outstanding
immediately before the transaction.
(c) For purposes of Paragraph 2(b)(1) above, a person shall be deemed to
be the beneficial owner of any shares which he or any of his
affiliates or associates (i) owns, directly or indirectly, (ii) has
the right to acquire, or (iii) has the right to vote or direct the
voting thereof pursuant to any agreement, arrangement or
understanding.
3. DISCHARGE FOR CAUSE
(a) The Company may at any time following a Change in Control discharge
Key Employee for Cause, in which event Key Employee shall not be
entitled to receive the severance benefits specified in Paragraph 6
below.
(b) For purposes of this Agreement, the Company shall have "Cause" to
discharge Key Employee only under the following circumstances:
(i) Key Employee shall have committed an act of dishonesty
constituting a felony and resulting or intending to result
directly or indirectly in gain or personal enrichment at the
expense of the Company; or
(ii) Key Employee shall have deliberately and intentionally refused
(for reasons other than incapacity due to accident or physical or
mental illness) to perform duties to the Company for a period of
15 consecutive days following the receipt by Key Employee of
written notice from the Company setting forth in detail the facts
upon which the Company relies in concluding that Key Employee has
deliberately and intentionally refused to perform such duties.
4. DISCHARGE FOR DISABILITY
(a) Subject to the provisions of the Americans with Disabilities Act and
other applicable law, the Company may at any time following a Change
in Control discharge Key Employee for Disability as provided in this
Paragraph 4, in which event Key Employee shall not be entitled to
receive the severance benefits specified in Paragraph 6 below.
(b) For purposes of this Agreement, the Company may discharge Key Employee
for "Disability" only under the following circumstances:
(i) Key Employee shall have been unable, for reasons of incapacity
due to accident or physical or mental illness, for a period of
six consecutive months to perform duties to the Company.
(ii) The Company, following the expiration of such period of six
consecutive months, shall have to give Key Employee 30 days
written notice of its intention to discharge Key Employee for
disability and Key Employee shall not within that 30 day period
have returned to the performance of duties to the Company on a
full-time basis; and
(iii) The Company shall provide or cause to be provided to Key
Employee short-term and long-term disability benefits and fringe
benefits not less generous than the following: (A) Key Employee
shall receive each month for six months following the date of
discharge for Disability Key Employee's full month salary (as in
effect immediately before discharge for Disability); (B) Key
Employee shall receive each month thereafter 60 percent of Key
Employee's monthly salary (as in effect immediately before
discharge for Disability) until the death of Key Employee or
until December 31 of the calendar year in which Key Employee
attains age 65, whichever shall first occur; and (c) Key Employee
shall receive those fringe benefits customarily provided by the
Company to disabled former employees, which benefits may include,
but shall not be limited to, life, medical, health, accident and
disability insurance and a survivor's income benefit.
(c) In the event that Key Employee shall at any time cease to be disabled
following discharge for Disability, the Company shall do one of the
following:
(i) Reappoint Key Employee to Key Employee position with the Company,
with full salary and benefits, as they existed immediately before
discharge for Disability, in which case this Agreement shall
remain in full force and effect as though Key Employee had never
been so discharged; or
(ii) Treat Key Employee as though Key Employee has been discharged for
reasons other than Cause or Disability, in which case Key
Employee shall be entitled to receive the severance benefits
specified in Paragraph 6 below.
(d) In the event that Key Employee shall disagree with a determination on
the part of the Company that Key Employee is disabled or in the event
that the Company shall disagree with a determination on the part of
Key Employee that Key Employee is no longer disabled, the matter shall
be submitted to an impartial and reputable medical doctor to be
selected by mutual agreement of the parties. In the event that Key
Employee and the Company are unable to agree, the matter shall be
submitted to an impartial and reputable medical doctor to be selected,
upon petition by either party, by the court.
5. RESIGNATION FOR GOOD REASON
(a) Key Employee may at any time following a Change in Control resign from
the Company for Good Reason, in which event Key Employee shall be
entitled to receive the severance benefits specified in Paragraph 6
below.
(b) For purposes of this Agreement, Key Employee shall have "Good Reason"
to resign if the Company, without Key Employee's prior written
consent, shall have changed in any significant respect the authority,
duties, compensation, benefits or other terms or conditions of Key
Employee's employment (including requiring Key Employee to perform a
substantial portion of duties at a location outside a twenty-five mile
radius of the location where the Key Employee worked immediately
before the Change in Control of the Company) in a manner which is
adverse to Key Employee. It shall not be deemed to be a significant
change in authority or duties if Key Employee is assigned a different
title, position or reporting authority after the Change in Control of
the Company so long as Key Employee continues to perform duties which,
in aggregate, are similar to some or all of the duties performed by
Key Employee immediately before the Change in Control of the Company.
6. SEVERANCE BENEFITS
The severance benefits to be provided to Key Employee by the Company under
this Agreement are as follows:
(a) Salary Continuation: The Company shall pay to Key Employee each month
during the Severance Benefit Period an amount equal to one-twelfth of
Key Employee's base annual salary. Key Employee's base annual salary
shall be deemed to be an amount equal to the aggregate salary paid to
Key Employee by or on behalf of the Company during the most
recent taxable year ending before the Change of Control shall occur.
The payment to be made in respect of each month shall be made on or
before the 15th day of the next following month. In the event that the
Severance Benefit Period begins or ends on other than, respectively,
the first or last day of a calendar month, the payment to be made in
respect of that month shall be prorated accordingly. It is understood
that the Company shall withhold from each monthly payment such amounts
as may be required under any applicable federal, state or local income
tax law.
(b) Fringe Benefits: The Company shall at its expense provide to Key
Employee throughout Severance Benefit Period life, medical, health,
accident and disability insurance and a survivor's income benefit in
form, substance and amount which is, in each case, substantially
equivalent to that provided to Key Employee immediately before the
Change in Control or immediately before the commencement of the
Severance Benefit Period, whichever Key Employee shall, in each case,
select.
7. SEVERANCE BENEFIT PERIOD
The "Severance Benefit Period" shall commence upon the effective date of
Key Employee's discharge (for reasons other than Cause or Disability) or
resignation (for Good Reason) and shall terminate upon the first to occur of the
following events:
(a) The expiration of twelve (12) months following the effective date of
Key Employee's discharge or resignation;
(b) The expiration of the calendar year in which Key Employee attains age
65;
(c) Key Employee's death; or
(d) The election of Key Employee to terminate the Severance Benefit Period
pursuant to Paragraph 8(b) below.
8. COVENANT NOT TO COMPETE
(a) Key Employee agrees that Key Employee will not without the prior
written consent of the Company at any time during the Severance
Benefit Period become an officer, director, or employee of or
consultant to any bank, bank holding company or other financial
services institution with an office located within a twenty-five mile
radius of the office of the Company where Key Employee worked
immediately before the Change in Control of the Company.
(b) Key Employee may elect at any time to terminate the Severance Benefit
Period by delivering written notice to the Company in which event the
covenant not to compete set forth in Paragraph 8(a) above shall expire
and have no further force or effect.
(c) In the event of any breach by Key Employee of the covenant not to
compete set forth in Paragraph 8(a) above, the parties agree that the
exclusive remedy of the Company shall be to obtain an injunction,
order for specific performance, or other form of equitable relief from
a court of competent jurisdiction and that the Company shall not under
any
circumstances be entitled to recover monetary damages from Key
Employee by reason of any such breach.
9. MITIGATION AND SETOFF
(a) Key Employee shall not be required to mitigate the amount of any
payment or benefit provided for in Paragraph 6 above by seeking
employment or otherwise and the Company shall not be entitled to
setoff against the amount of any payment or benefit provided for in
Paragraph 6 above any amounts earned by Key Employee in other
employment during the Severance Benefit Period.
(b) The Company hereby waives any and all rights to set off in respect to
any claim, debt, obligation or other liability of any kind whatsoever,
against any payment or benefit provided for in Paragraph 6 above.
10. ATTORNEYS' FEES AND RELATED EXPENSES
All attorneys' fees and related expenses incurred by Key Employee in
connection with or relating to enforcement by Key Employee of rights under this
Agreement shall be paid for in full by the Company.
11. SUCCESSORS AND PARTIES IN INTEREST
(a) This Agreement shall be binding upon and shall inure to the benefit of
the Company and its successors and assigns, including, without
limitation, any corporation which acquires, directly or indirectly, by
purchase, merger, consolidation or otherwise, all or substantially all
of the business or assets of the Company. Without limitation of the
foregoing, the Company shall require any such successor, expressly
assume and agree to perform this Agreement in the same manner and to
the same extent that it is required to be performed by the Company.
(b) This Agreement is binding upon and shall inure to the benefit of Key
Employee and the heirs and personal representatives of Key Employee.
12. RIGHTS UNDER OTHER PLANS
This Agreement is not intended to reduce, restrict or eliminate any benefit
to which Key Employee may otherwise be entitled at the time of discharge or
resignation under any employee benefit plan of the Company then in effect.
13. TERMINATION
This Agreement may not be terminated except by mutual consent of the
parties, as evidenced by a written instrument duly executed by the Company and
by Key Employee.
14. NOTICES
All notices and other communications required to be given hereunder shall
be in writing and shall be deemed to have been given or made when hand delivered
or when mailed, certified mail, return receipt requested, to the Company or to
Key Employee, as the case may be, at their respective addresses set forth above.
15. SEVERABILITY
In the event that any provision of this Agreement shall be held to be
invalid or unenforceable by any court of competent jurisdiction, such provision
shall be deemed severable from the remainder of the Agreement and such holding
shall not invalidate or render unenforceable any other provision of this
Agreement.
16. GOVERNING LAW, JURISDICTION AND VENUE
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania. In the event that either party shall
institute any suit or other legal proceeding, whether in law or in equity,
arising from or relating to this Agreement, the courts of the Commonwealth of
Pennsylvania shall have exclusive jurisdiction and venue shall lie exclusively
in the Court of Common Pleas of Lancaster County.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Company and Key
Employee concerning the subject matter hereof and supersedes all prior written
or oral agreements or understandings between them. No term or provision of this
Agreement may be changed, waived, amended or terminated, except by written
instrument duly executed by the Company and by Key Employee.
IN WITNESS WHEREOF, this Agreement is executed as of the day and year first
above written.
ATTEST: XXXXXX FINANCIAL CORPORATION
By: By:
--------------------------------- ------------------------------------
Title: Secretary Title: President and Chief Executive
Officer
(CORPORATE SEAL)
WITNESS:
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Xxxxx X. Xxxx
AMENDMENT OF SEVERANCE AGREEMENT
THIS AMENDMENT, dated as of July 22, 2002 is made by and between Xxxxxx
Financial Corporation, a Pennsylvania corporation with offices at Xxx Xxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000 (together with its subsidiaries and
affiliates, collectively, the "Company") and XXXXX X. XXXX, an adult individual
who resides at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 ("Key Employee").
WHEREAS, Company and Key Employee entered into a severance agreement dated
October 17, 2000 which provided to the Key Employee certain limited severance
benefits payable in the event the Key Employee is discharged or is compelled to
resign following, and for reasons relating to a change in control of the Company
("Severance Agreement").
WHEREAS, the Company in reviewing the form of the severance agreement in
connection with providing such agreement to other key employees recently
discovered that certain language is missing in Paragraph 2 (b)(2) of the
Severance Agreement provided to the Key Employee.
WHEREAS, it is the intention of the Company and the Key Employee to correct
this error and amend the Severance Agreement by replacing the current paragraph
2 (b)(2) in its entirety with a new paragraph 2 (b)(2).
NOW, THEREFORE, in consideration of Key Employee's continuing service to
the Company and other good and valuable consideration, the parties hereto,
intending to be legally bound, hereby agree as follows:
The existing paragraph 2(b) (2) of the Severance Agreement by and between
the Company and the Key Employee is hereby replaced in its entirety by the
following paragraph 2(b)(2):
The composition of the Board of Directors of Xxxxxx Financial
Corporation shall have changed such that during any period of two
consecutive years during the term of this Agreement, the persons who
at the beginning of such period were members of the Board of Directors
cease for any reason to constitute a majority of the Board of
Directors, unless the nomination or election of each director who was
not a director at the beginning of such period was approved in advance
by directors representing not less than two-thirds of the directors
then in office who were directors at the beginning of the period; or
Except as otherwise expressly modified by this Amendment, the Severance
Agreement remains in full force and effect, without modification.
IN WITNESS WHEREOF, this Amendment is executed as of the day and year first
above written.
ATTEST: XXXXXX FINANCIAL CORPORATION
By: By:
--------------------------------- ------------------------------------
Title: Secretary Title: President and Chief Operating
Officer
(CORPORATE SEAL)
WITNESS:
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