EXHIBIT 10M
AGREEMENT
THIS AGREEMENT is made as of July 03, 2003, by and among Xxxxxxx Valley
Bancorp Inc., a Pennsylvania corporation (the "Holding Company"), First
Financial Bank, a Pennsylvania-chartered commercial bank (the "Bank"), which is
wholly-owned subsidiary of the Holding Company (the Holding Company and the Bank
being herein collectively called the "Company"), and G. Xxxxxxx Xxxxxxxx
("Employee").
WITNESSETH THAT:
Background. Employee is currently employed as Bank's Executive Vice
----------
President and Chief Credit Officer. Such employment is terminable at will and is
not governed by any written employment contract. The parties hereto desire to
supplement the terms of Employee's employment as in effect from time to time by
including certain mutual covenants more particularly set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual promises
set forth herein, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Severance Compensation and Benefit. Without limiting the parties' rights
----------------------------------
to terminate the Employee's employment at will, for any or no reason, the
Company agrees that if, within one year after the occurrence of a Change in
Control (as defined below), it terminates the Employee's employment for any
reason other than Just Cause (as defined below), or for no reason, or if
Employee shall terminate his employment for Good Reason as defined herein, then,
in either case, the Company shall pay to or for the benefit of Employee, and
Employee shall be entitled to receive from the Company, in lieu of any other
severance compensation or benefit, the following:
(a) If Employee elects continuation coverage under COBRA with respect to
the Company's group medical and dental insurance plans as in effect from time to
time for Company employees generally, the Company shall pay for the benefit of
Employee, for a period ending on the earlier of (i) the first anniversary of the
effective date of termination of Employee's employment or (ii) the date on which
Employee becomes eligible to participate in any other medical insurance plan as
an employee of any other employer (whether or not Employee elects to
participate), a portion of the premium for such continuation coverage equal to
the same portion of the premium that the Company is contributing at such time,
for single person coverage only, for Company employees generally who are
participating in the same medical and dental plans as Employee; and
(b) The Company shall pay Employee's base salary as in effect
immediately prior to the termination of his employment (which shall not include
any incentive or bonus payments) for a period of one year following the
effective date of termination of his employment.
The foregoing severance benefit and compensation shall be payable
monthly (or otherwise coincident with the Bank's normal payroll periods),
subject to deduction for any applicable payroll and withholding taxes. The
amount of severance compensation payable by the Company under Section 1(b) shall
be reduced, however, to the extent Employee earns compensation from any source
for services rendered by Employee within one year after termination of his
employment.
For purposes of this Agreement, Employee's employment shall be deemed to
have been terminated for "Just Cause" if the Company terminates Employee's
employment for cause consisting of personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty, willful violation of any law, rule or
regulation (other than traffic violations or similar offenses), willful
violation of a final cease and desist order, willful or intentional breach or
neglect by Employee of his duties as an employee of Bank, persistent negligence
or misconduct in the performance of her duties, material breach of any policy of
the Company communicated to Employee or to employees generally, or the issuance
of an order, directive or notice by any federal or state governmental agency
requiring termination of Employee's employment or suspension of Employee.
For purposes of this Agreement, termination by Employee of his
employment for "Good Reason" shall mean Employee's termination of employment
within one year from the occurrence of a Change in Control if, following the
Change in Control, Employee shall have been assigned to any duties inconsistent
with Employee's position, duties, responsibilities and status with the Bank
immediately prior to the Change in Control or there shall have been a change in
Employee's title as Chief Credit Officer of the Bank (or such other title as
Employee shall have held immediately prior to the Change in Control).
Also for the purposes of this Agreement, a "Change in Control" means,
with respect to the Holding Company or the Bank, occurrence of either the
following: (a) Any "person" as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934 as in effect from time to time (the
"Exchange Act") is or becomes the beneficial owner (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Holding
Company or the Bank (excluding the Holding Company's ownership in the Bank)
representing 67% or more of the combined voting power of the Holding Company's
or the Bank's then outstanding securities, or (b) during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of the Company or the Bank cease for any reason to
constitute at least a majority thereof, unless the election of each director who
was not a director at the beginning of such period has been approved in advance
by directors representing at least two-thirds of the directors then in office
who were directors at the beginning of the period.
2
2. Confidentiality and Restrictive Covenants.
-----------------------------------------
2.1 Employee agrees and acknowledges that by virtue of his employment by
the Company, he will have an intimate knowledge of the activities and affairs of
the Company, including trade secrets, plans, business plans, strategies,
projections, financial planning, cost/benefit analysis, market studies, customer
information, employee records and other internal proprietary and/or confidential
information and matters (collectively "Confidential Information").
2.2 During and after any termination of Employee's employment: except
for the purpose of carrying out his duties for the Company, Employee will not
remove or retain, or make copies or reproductions of any figures, documents,
records, discs, computer records, calculations, letters, papers or recorded or
documented information of any type or description relating to the business of
the Company; and Employee agrees that he will not divulge to others, or use for
any purpose other than his employment with the Company, any Confidential
Information or other information (whether or not documented or recorded) or data
acquired by his while in the Company's employ relating to inventions, methods,
processes, or other trade secrets or Confidential Information.
2.3 Employee agrees that Company is, and shall be, the sole and
exclusive owner of all improvements, procedures, processes, methods, ideas, and
suggestions, whether or not subject to patent or trademark protection, and all
copyrightable materials which are conceived by Employee during his employment,
which relate to the business of the Company, which are confidential, and which
are not readily ascertainable from persons or other sources outside the Company.
2.4 For a period of one (1) year after the termination of his
employment, Employee shall not, directly or indirectly, solicit, induce,
encourage or attempt to influence any client, customer, or employee of the
Company to cease to do business with, to direct business from, or to terminate
any employee's employment with the Company.
2.5 The Company shall be entitled to immediate injunctive or other
equitable relief to restrain Employee from failing to comply with any obligation
under Sections 2.1 through 2.4 or from rendering his services to others than the
Company, in addition to any other remedies to which the Company may be entitled
at law or in equity. The right to such injunctive or other equitable relief
shall survive the termination of Employee's employment.
2.6 Employee acknowledges that the restrictions contained in
Sections 2.1 through 2.4 are reasonable and necessary to protect the legitimate
interests of the Company and that any violation thereof would result in
irreparable injuries to the Company. Employee acknowledges that, in the event of
the Employee's violation of any of these restrictions, the Company is entitled
to obtain from any court of competent jurisdiction, preliminary and permanent
injunctive relief as well as damages, and an equitable accounting of any
earnings, profits and other benefits arising from such violation, which rights
shall be cumulative and in addition to any other rights or remedies to which the
Company may be entitled. Employee further acknowledges that the provisions of
Sections 2.1 through 2.6, inclusive, shall remain in full force and effect
beyond the termination of Employee's employment for any reason, including but
not limited to termination after a Change in Control.
3
3. Miscellaneous.
-------------
3.1 This Agreement sets forth the entire agreement among the parties
with respect to the subject matter hereof, superseding all prior agreements and
understandings, whether written or oral. This Agreement shall take effect as a
supplement to the terms of Employee's employment, which the parties acknowledge
continues on an at-will basis, terminable by any party at any time for any
reason or for no reason, and does not affect any of the other terms of
employment not specifically dealt with herein. Without limiting the generality
of the foregoing, Employee acknowledges that the vesting of benefits (such as,
by way of example, life insurance, stock options, pension and 401K matching
contribution) shall cease upon termination of his employment.
3.2 This Agreement shall be governed in all respects and be interpreted
by and under the laws of the Commonwealth of Pennsylvania, except to the extent
that such laws may be preempted by applicable federal law. The Company and
Employee agree that any dispute regarding the provisions of Section 1 of this
Agreement that cannot be resolved amicably by the parties will be submitted to
binding arbitration in accordance with the rules of American Arbitration
Association. (Any dispute involving the provisions of Section 2 of this
Agreement, including but not limited to any action to enforce provisions of
Section 2, shall not be subject to arbitration, and the Company may seek an
injunction or other equitable relief in courts of competent jurisdiction in
Pennsylvania or elsewhere.) The arbitrator in any arbitration provided for
herein will be selected by the parties or if the parties cannot mutually agree,
then appointed by the American Arbitration Association. The arbitration will be
held in Philadelphia, Pennsylvania and the arbitrator will apply Pennsylvania
law (except as to any issue preempted by federal law). Judgment upon any award
rendered by the arbitrator will be final and binding and may be entered in any
court of competent jurisdiction. The arbitrator is empowered to award any remedy
or damages consistent with existing law. The parties shall be responsible for
their own costs and expenses under this Section 3.2. The provisions of this
Section 3.2 shall remain in full force and effect after termination of
Employee's employment for any reason, including but not limited to termination
after a Change in Control.
3.3 If any provision of this Agreement shall be held invalid under any
applicable law, such invalidity shall not affect any other provision of this
Agreement that can be given effect without the invalid provision, and, to this
end, the provisions hereof are severable.
3.4 The rights and obligations of the parties to this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of the
Company and the heirs and personal representatives of Employee.
3.5 No course of conduct between the Company and Employee and no delay
or omission of the Company or Employee to exercise any right or power given
under this Agreement shall (i) impair the subsequent exercise of any right or
remedy, or (ii) be construed to be a waiver of any default or any acquiescence
in or consent to the curing of any default while any other default shall
continue to exist, or be construed to be a waiver of such continuing default or
of any other right or remedy that shall theretofore have arisen. Every right and
remedy granted by law and by this Agreement to any party hereto may be exercised
from time to time and as often as made by deemed expedient. All such rights and
remedies shall be cumulative to the fullest extent permitted by law.
3.6 References herein to any particular section of a statute, rule or
regulation shall also be deemed to be a reference to any successor section,
statute, rule or regulation.
4
3.7 This Agreement may not be modified, changed, amended or altered
except by an instrument in writing signed by Employee or by his duly authorized
representative, and by a duly authorized officer of each of the Bank and the
Holding Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
FIRST FINANCIAL BANK XXXXXXX VALLEY BANCORP INC.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. XxXxxxxx
--------------------------------- -----------------------------------
Xxxxx X. Xxxxxxx, President Xxxxx X. XxXxxxxx, Chairman
and Chief Executive Officer
Witness: EMPLOYEE
/s/ Xxxxxx X. Xxxxx /s/ G. Xxxxxxx Xxxxxxxx
------------------------------------ ---------------------------------------
Xxxxxx X. Xxxxx G. Xxxxxxx Xxxxxxxx
5
