EXECUTIVE AGREEMENT
THIS AGREEMENT is made as of this 24th day of September, 1997, among
NATIONAL PENN BANCSHARES, INC., a Pennsylvania business corporation having its
principal place of business in Boyertown, Pennsylvania ("NPB"), NATIONAL PENN
BANK, a national banking association having its principal place of business in
Boyertown, Pennsylvania ("Bank"), and Xxxxx X. Xxxx, an individual residing in
Mertztown, Pennsylvania ("Executive").
W I T N E S E T H :
WHEREAS, Executive is employed by [NPB] [Bank] as an Executive Vice
President; and
WHEREAS, the Boards of Directors of NPB and Bank deem it advisable to
provide Executive with certain additional benefits in the event of certain
changes in control of NPB or Bank so that Executive will continue to attend to
the business of NPB and Bank without distraction in the face of the potentially
disturbing circumstances arising therefrom.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises set
forth herein, and each intending to be legally bound, NPB, Bank and Executive
agree as follows:
1. Definitions. The following terms have the meanings specified below:
a. "Affiliate" means any corporation which is included within a
"controlled group of corporations" including NPB, as determined under Code
Section 1563.
b. "Base Amount" means Executive's average annualized taxable
compensation for the five (5) years prior to the year in which a Change in
Control occurs, determined in accordance with the provisions of Code
Section 280G and regulations promulgated thereunder.
c. "Cause" has the meaning set forth in Section 4 hereof.
d. "Change in Control" means:
i. An acquisition by any "person" or "group" (as those terms are
defined or used in Section 13(d) of the Exchange Act) of "beneficial
ownership" (within the meaning of Rule 13d-3 under the Exchange Act)
of securities of NPB representing 24.99% or more of the
1
combined voting power of NPB's securities then outstanding;
ii. A merger, consolidation or other reorganization of Bank,
except where the resulting entity is controlled, directly or
indirectly, by NPB;
iii. A merger, consolidation or other reorganization of NPB,
except where shareholders of NPB immediately prior to consummation of
any such transaction continue to hold at least a majority of the
voting power of the outstanding voting securities of the legal entity
resulting from or existing after any transaction and a majority of the
members of the Board of Directors of the legal entity resulting from
or existing after any such transaction are former members of NPB's
Board of Directors;
iv. A sale, exchange, transfer or other disposition of
substantially all of the assets of the Employer to another entity,
except to an entity controlled, directly or indirectly, by NPB;
v. A sale, exchange, transfer or other disposition of
substantially all of the assets of NPB to another entity, or a
corporate division involving NPB; or
vi. A contested proxy solicitation of the shareholders of NPB
that results in the contesting party obtaining the ability to cast 25%
or more of the votes entitled to be cast in an election of directors
of NPB.
e. "Code" means the Internal Revenue Code of 1986, as amended, and as
the same may be amended from time to time.
f. "Employer" means Bank, NPB or any Affiliate which employs Executive
at any particular time.
g. "Employment" means Executive's employment by Bank, NPB or any
Affiliate at any particular time.
h. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
i. "Salary" means the Executive's annual base salary, established
either by contract or by the Board of Directors of Employer, prior to any
reduction of such salary pursuant to any contribution to a tax-qualified
plan under Section 401(k) of the Code.
2
2. Resignation of Executive. If a Change in Control shall occur and if
thereafter, at any time, there shall be:
a. Any involuntary termination of Executive's employment (other than
for Cause);
b. Any reduction in Executive's title, responsibilities or authority,
including such title, responsibilities or authority as such may be
increased from time to time;
c. Any reduction in Executive's Salary in effect immediately prior to
a Change in Control, or any failure to provide Executive with benefits at
least as favorable as those enjoyed by Executive under any of the pension,
life insurance, medical, health and accident, disability or other employee
plans of NPB or an Affiliate in which Executive participated immediately
prior to a Change in Control, or the taking of any action that would
materially reduce any of such compensation or benefits in effect at the
time of the Change in Control, unless such reduction relates to a reduction
applicable to all employees generally;
d. Any reassignment of Executive beyond a thirty (30) minute commute
by automobile from Boyertown, Pennsylvania; or
e. Any requirement that Executive travel in performance of his duties
on behalf of NPB or an Affiliate for a greater period of time during any
year than was required of Executive during the year preceding the year in
which the Change in Control occurred;
then, at the option of Executive, exercisable by Executive within one hundred
eighty (180) days of the occurrence of each and every of the foregoing events,
the Executive may resign from employment (or, if involuntarily terminated, give
notice of intention to collect benefits hereunder) by delivering a notice in
writing (the "Notice of Termination") to NPB, and the Continuing Compensation
and Benefits' provisions of this Agreement shall apply.
3. Continuing Compensation and Benefits.
a. At the time of termination of Executive's employment in accordance
with Section 2 hereof, Employer shall make a lump-sum cash payment to
Executive no later than thirty (30) days following the date of such
termination in an amount equal to 200% of Executive's Base Amount.
b. Notwithstanding the foregoing or any other provision of this
Agreement to the contrary, in no event shall any payment to Executive
pursuant to Subsection 3.a. above be
3
greater than an amount equal to an amount ("X") determined pursuant to the
following formula:
D
X = (2.99A - B) x (1 + C) .
For purposes of the foregoing formula:
A = Executive's Base Amount (determined pursuant to Internal Revenue
Code Section 280G(b)(3)(A)) on the date of the Change in Control;
B = The present value of all other amounts which qualify as parachute
payments under Code Section 280G(b)(2)(A) or (B) (without regard
to the provisions of Code Section 280G(b)(2)(A)(ii)), such
present value to be determined pursuant to the provisions of Code
Section 280G;
C = 120% times 0.5 times the lowest of the semiannual applicable
federal rates (determined pursuant to Code Section 1274(d)) in
effect on the date of the Change in Control; and
D = The number of whole semiannual periods plus any fraction of a
semiannual period from the date of the Change in Control to the
date of termination of the Executive's employment.
c. Executive shall not be required to mitigate the amount of any
payment provided for in Subsection 3.a. by seeking other employment or
otherwise, nor shall the amount of any payment or benefit provided for in
subsection 3.a. be reduced by any compensation earned by Executive as the
result of employment by another employer or by reason of Executive's
receipt of or right to receive any retirement or other benefits after the
date of termination of employment or otherwise, except as otherwise
provided therein.
4. Termination for Cause. The Employer may terminate Executive's Employment
for "Cause". For purposes of this Agreement, "Cause" means the occurrence of
either of the following:
a. Executive's conviction of, or plea of guilty or nolo contendere to,
a felony or a crime of falsehood or involving moral turpitude; or
b. the willful failure by Executive to substantially perform his
duties to the Employer, other than a failure resulting from Executive's
incapacity as a result of the Executive's disability, which willful failure
results in demonstrable material injury and damage to the Employer.
4
Notwithstanding the foregoing, Executive's Employment shall not be deemed
to have been terminated for Cause if such termination took place as a
result of:
i. questionable judgment on the part of Executive;
ii. any act or omission believed by Executive in good faith, to
have been in or not opposed to the best interests of the Employer; or
iii. any act or omission in respect of which a determination
could properly be made that Executive met the applicable standard of
conduct prescribed for indemnification or reimbursement or payment of
expenses under the By-laws of NPB or the laws of the Commonwealth of
Pennsylvania, or the directors and officers' liability insurance of
NPB or any Employer, in each case as in effect at the time of such act
or omission.
If Executive's Employment is terminated for Cause, all rights of Executive
under this Agreement shall cease as of the effective date of such termination,
except that Executive (i) shall be entitled to receive accrued Salary through
the date of such termination and (ii) shall be entitled to receive the payments
and benefits to which he is then entitled under the employee benefit plans of
the Employer or any affiliate thereof as of the date of such termination.
5. Arbitration. Any dispute or controversy arising out of or relating to
this Agreement and any controversy as to a termination for Cause shall be
settled exclusively by arbitration, conducted before a panel of three
arbitrators, in Reading, Pennsylvania, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrators' award in any court having jurisdiction.
6. Exclusive Benefit. Executive shall have no right to commute, sell,
assign, transfer or otherwise convey the right to receive any payments
hereunder, which payment and the right thereto are expressly declared to be
non-assignable and non-transferrable. In the event of any attempted assignment
or transfer, Employer shall have no further liability hereunder.
7. Notices. Any notice required or permitted to be given under this
Agreement shall be properly given if in writing and if mailed by registered or
certified mail, postage prepaid with return receipt requested, to Executive's
residence in the case of any notice to Executive, or to the principal office of
Bank, in the case of any notice to the Employer.
5
8. Entire Agreement. This Agreement contains the entire agreement relating
to the subject matter hereof and may not be modified, amended or changed orally
but only by an agreement in writing, consented to in writing by NPB, and signed
by the party against whom enforcement of any modification, amendment or change
is sought.
9. Benefits.
a. This Agreement shall be binding upon and inure to the benefit of
NPB and Bank and their respective successors and assigns. Each of NPB and
Bank shall requires any successor (whether direct or indirect, by purchase,
merger, consolidation, or otherwise) to all or substantially all of the
business and/or assets of NPB or Bank to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that NPB
or Bank would be required to perform it if no such succession had taken
place. Failure to obtain such assumption and agreement prior to the
effectiveness of any such succession shall constitute a breach of this
Agreement and the provisions of Section 2 of this Agreement shall apply. As
used in this Agreement, "NPB" or "Bank" shall mean NPB or Bank as defined
previously and any successor to the business and/or assets of NPB or Bank
as aforesaid which assumes and agrees to perform this Agreement by
operation of law or otherwise.
b. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by Executive's personal or legal representatives,
executors, administrators, heirs, distributees, devisees and legatees.
10. Applicable Law. This Agreement shall be governed by and construed in
accordance with the domestic internal law (but not the law of conflicts of law)
of the Commonwealth of Pennsylvania.
11. Headings. The headings of the sections and subsections hereof are for
convenience only and shall not control or affect the meaning or construction or
limit the scope or intent of any of the sections or subsections of this
Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
6
IN WITNESS WHEREOF, NPB and Bank have each duly caused this Agreement to be
executed on its behalf by its duly authorized officers, and Executive has
hereunto set his hand and seal, as of the day and year first above written.
NATIONAL PENN BANCSHARES, INC.
(SEAL) By:/s/Xxxxx X. Xxxxxxx
Title: Executive Vice President
Attest:/s/ Xxxxxx X. Xxxxx
Title:
NATIONAL PENN BANK
(SEAL) By:/s/ Xxxxx X. Xxxxxxx
Title: President & CEO
Attest:/s/ Xxxxxx X. Xxxxx
Title:
Witness:
/s/ Xxxxxx X. Xxxxxxxxxxxx /s/ Xxxxx X. Xxxx (SEAL)
[Executive]
7
