Exhibit 10.7
CHANGE OF CONTROL AGREEMENT
AGREEMENT made as of December 27, 2005 by and among CODORUS VALLEY
BANCORP, INC., a Pennsylvania business corporation, (hereinafter referred to as
the "Corporation"), PEOPLESBANK, A CODORUS VALLEY COMPANY, a Pennsylvania state
charted bank (hereinafter referred to as the "Bank") and XXXX X. XXXXXX, an
individual residing at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx (hereinafter
referred to as "Executive").
WITNESSETH:
WHEREAS, the Corporation, the Bank and Executive entered into a Change
of Control Agreement dated as of October 1, 1997 (the "1997 Agreement"),
regarding, among other things, certain payments which may be due Executive upon
termination following a Change of Control; and
WHEREAS, Executive is now serving as Treasurer/Chief Financial Officer
of the Corporation and as Executive Vice President/Chief Financial Officer of
the Bank, a wholly-owned subsidiary of the Corporation; and
WHEREAS, the Corporation and the Bank consider the continued services
of Executive to be in the best interests of the Corporation and the Bank; and
-54-
WHEREAS, the Corporation, the Bank and Executive desire to enter into
this Agreement whereby the Corporation agrees to make certain payments to
Executive upon termination under specific conditions, in order to induce
Executive to continue in employment, and concurrently herewith, to terminate the
1997 Agreement, all as hereinafter set forth
NOW, THEREFORE, in consideration of the continued employment of
Executive and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, intending to be legally bound hereby,
Executive, the Corporation and the Bank agree as follows:
ARTICLE I
TERMINATION PURSUANT TO A CHANGE OF CONTROL
1.1 DEFINITION: TERMINATION PURSUANT TO A CHANGE OF CONTROL. Any of
the following events occurring during the period commencing with the date of any
"Change of Control" (as defined in ARTICLE II hereof) and ending on the second
(2nd) anniversary of the date of the Change of Control, shall constitute a
"Termination Pursuant to a Change of Control":
(A) Executive's employment is terminated by the Corporation, the Bank
or an acquiror or successor of either without "Good Cause" (as defined
below); or
(B) Any of the following events occurs and Executive thereafter
terminates Executive's employment:
-55-
(i) any reduction in Executive's responsibilities, including
reporting responsibilities, or authority, including such
responsibilities or authorities as may be increased from time to time;
or
(ii) the assignment to Executive of duties inconsistent with
Executive's title or office, as the same may be increased from time to
time; or
(iii) any reassignment of Executive to a principal place of
employment which is more than twenty-five (25) miles form Executive's
principal place of employment immediately prior to the Change of
Control; or
(iv) any reduction in Executive's annual base salary as the same
may be increased from time to time; or
(v) any failure to provide Executive with benefits at least as
favorable as those enjoyed by Executive under Corporation's or Bank's
retirement or pension, life insurance, medical, health and accident,
disability or other employee or incentive compensation plans in which
Executive participated or the taking of any action that would
materially reduce any of such benefits, unless such reduction is part
of a reduction applicable in each case to all employees; or
(vi) any requirement that Executive travel in performance of his
duties on behalf of Corporation or Bank for a significantly greater
period of time during any year than was required of Executive during
the year preceding the year in which the Change of Control occurred;
or
(vii) Any material breach of this Agreement of any nature
whatsoever on the part of the Corporation or the Bank.
For purposes of this Section 1.1, "Good Cause" shall mean (i) the
willful failure by the Executive to substantially perform his duties as an
officer of the Corporation or Bank after
-56-
Executive's receipt of written notice from the Bank of such failure, other than
a failure resulting from the Executive's incapacity because of physical or
mental illness, or (ii) the willful engaging by the Executive in misconduct
injurious to the Corporation or Bank, or (iii) the dishonesty or gross
negligence of the Executive in the performance of his duties, or (iv) the breach
of Executive's fiduciary duty involving personal profit, or (v) the violation of
any law, rule or regulation governing banks or bank officers or any final cease
and desist order issued by a bank regulatory authority, any of which materially
jeopardizes the business of the Corporation or Bank, or (vi) moral turpitude or
other conduct on the part of the Executive which brings public discredit to the
Corporation or Bank. The burden of establishing the validity of any termination
for Good Cause shall rest upon the Corporation or the Bank.
1.2 COMPENSATION UPON TERMINATION PURSUANT TO A CHANGE OF CONTROL. If
Executive's employment is terminated and such termination is a Termination
Pursuant to a Change of Control (as defined in Section 1.1), the Executive shall
be entitled to receive the following:
(A) Executive's compensation shall be continued for a period of one
(1) year, commencing as of the Termination Pursuant to the Change of
Control. For purposes of this Section 1.2, compensation shall mean (i) the
highest of Executive's annualized base salary at the time of or during one
of the three calendar years immediately preceding the Termination Pursuant
to a Change of Control, plus (ii) the highest bonus earned by Executive
with respect to one of the three calendar years immediately preceding the
date of the Termination Pursuant to a Change of Control. Notwithstanding
the provisions of the preceding sentence, Executive, at his/her option, may
choose to receive, within thirty (30) days after termination of Executive's
employment, a lump sum equal to the present value of the amount otherwise
payable hereunder, determined by using the short-term applicable federal
rate under Section 1274 of the Internal Revenue Code of 1986, as amended,
in effect on the date of termination of employment; and
-57-
(B) For a period of one (1) year, commencing as of the Termination
Pursuant to the Change of Control, the Bank also shall maintain in full
force and effect, for the continued benefit of the Executive, all employee
benefit plans and programs to which the Executive was entitled prior to the
date of termination, if the Executive's continued participation is possible
under the general terms and provisions of such plans, and programs, except
that if the Executive's participation in any health, medical, life
insurance, or disability plan or program is barred, the Bank shall obtain
and pay for, on the Executive's behalf, individual insurance plans,
policies or programs which provide to the Executive health, medical, life
and disability insurance coverage which is substantially equivalent to the
insurance coverage to which Executive was entitled prior to the date of
termination.
1.3 OTHER BENEFITS. The payments provided by this ARTICLE I shall not
affect Executive's rights to receive any payments or benefits to which Executive
may be or become entitled under any other existing or future agreement or
arrangement of the Corporation, the Bank or any successor of either with the
Executive, or under any existing or future benefit plan or arrangement of the
Corporation, the Bank or any successor in which Executive is or becomes a
participant, or under which Executive has or obtains rights, including without
limitation, any qualified or nonqualified deferred compensation or retirement
plans or programs or any outstanding stock options or similar agreements. Any
such rights of Executive shall be determined in accordance with the terms and
conditions of the applicable agreement, arrangement or plan and applicable law,
provided, however, that Executive shall not be entitled to any severance
payments in addition to those provided hereunder.
1.4 WITHHOLDING FOR TAXES. All payments required to be made under this
Agreement will be made in accordance with the Corporation's or other payor's
normal payroll schedule except to the extent the Executive elects to receive
payments in a lump sum as permitted
-58-
by Section 1.2, and will be subject to withholding of such amounts relating to
tax and/or other payroll deductions as may be required by law.
1.5 KEY EMPLOYEE STATUS. Notwithstanding anything in this Section to
the contrary, in the event Executive is determined to be a Key Employee, as that
term is defined in Section 409A of the Internal Revenue Code and the regulations
promulgated thereunder, payments to such Key Employee hereunder, shall not begin
earlier than the first day of the seventh month after the date of termination.
For the purposes of the foregoing, the date upon which a determination
is made as to the Key Employee status of the Executive, the Indemnification Date
(as defined in Section 490A of the Code and the regulations promulgated
thereunder) shall be December 31.
ARTICLE II
DEFINITION OF CHANGE OF CONTROL
2.1 CHANGE OF CONTROL. For purposes of this Agreement, the term
"Change of Control" shall mean: a Change in the Ownership of the Corporation or
the Bank, (as defined below), a Change in the Effective Control of the
Corporation or the Bank (as defined below), or a Change in the Ownership of a
Substantial Portion of the Assets of the Corporation or the Bank, (as defined
below).
(A) Change in the Ownership of the Corporation or the Bank. A Change
in the Ownership of the Corporation or the Bank occurs on the date that any
one person, or more than one person acting as a group (as defined below),
acquires ownership of stock of the Corporation or the Bank that, together
with
-59-
stock held by such person or group, constitutes more than 50 percent of the
total fair market value or total voting power of the stock of the
Corporation or the Bank. However, if any one person, or more than one
person acting as a group, is considered to own more than 50 percent of the
total fair market value or total voting power of the stock of the
Corporation or the Bank, the acquisition of additional stock by the same
person or persons is not considered to cause a Change in Ownership of the
Corporation or the Bank. An increase in the percentage of stock owned by
any one person or persons acting as a group, as a result of a transaction
in which the Corporation or Bank acquires its stock in exchange for
property will be treated as an acquisition of stock for these purposes. A
change in ownership of the Corporation or the Bank only occurs when there
is a transfer or issuance of stock of the Corporation or the Bank and the
stock remains outstanding after the transaction.
(B) Change in Effective Control of the Corporation or the Bank. A
Change in Effective Control of the Corporation or the Bank occurs only on
the date that either:
(i) Any one person, or more than one person acting as a group (as
defined below), acquires (or has acquired during the 12-month period
ending on the date of the most recent acquisition by such person or
persons) ownership of stock of the Corporation or the Bank possessing
35 percent or more of the total voting power or the stock of the
Corporation or the Bank; or
(ii) A majority of members of the Corporation's Board of
Directors is replaced during any 12-month period by directors whose
appointment or election is not endorsed by a majority of the members
of the Corporation's Board of Directors prior to the date of the
appointment or election.
If any one person, or more than one person acting as a group, is
considered to effectively control the Corporation or the Bank, the
acquisition of additional control of the Corporation or the Bank by the
same person or persons is not considered to cause a Change in the Effective
Control of the Corporation or the Bank.
-60-
(C) Change in Ownership of a Substantial Portion of the Corporation's
or the Bank's Assets. A Change in Ownership of a Substantial Portion of the
Corporation's or the Bank's Assets occurs on the date that any one person,
or more than one person acting as a group (as defined below), acquires (or
has acquired during the 12-month period ending on the date of the most
recent acquisition by such person or persons) assets from the Corporation
or the Bank that have a total gross fair market value equal to or more than
40 percent of the total gross fair market value of all of the assets of the
Corporation or the Bank immediately prior to such acquisition or
acquisitions. For this purpose, gross fair market value means the value of
assets of the Corporation or the Bank, or the value of the assets being
disposed of, determined without regard to any liabilities associated with
such assets.
There is no Change of Control under this Paragraph 2.1(C) if there is
a transfer of assets to an entity that is:
(i) A shareholder of the Corporation or the Bank (immediately before
the asset transfer) in exchange for or with respect to its stock;
(ii) An entity, 50 percent or more of the total value or voting power
of which is owned, directly or indirectly, by the Corporation or the Bank;
(iii) A person, or more than one person acting as a group, that owns,
directly or indirectly, 50 percent or more of the total value or voting
power of all the outstanding stock of the Corporation or the Bank; or
(iv) An entity, at least 50 percent of the total value or voting power
of which is owned, directly or indirectly, by a person described in (i),
(ii), or (iii) above.
(D) For purposes of this Paragraph 2.1, persons will not be considered
to be acting as a group solely because they purchase or own stock or
purchase assets of the Corporation or the Bank at the same time. However,
persons will be considered to be acting as a group if they are owners of a
corporation that enters into a merger, consolidation, purchase or
acquisition of assets, or similar transaction, such shareholder is
considered to be acting as a group with other shareholders in a corporation
only to the extent of the ownership in the corporation prior to the
-61-
transaction giving rise to the change and not with respect to the ownership
interest in the other corporation.
2.2 Notwithstanding anything else to the contrary set forth in this
Agreement, if (i) an agreement is executed by the Corporation or the Bank
providing for any of the transactions or events constituting a Change of Control
pursuant to this ARTICLE II or an announcement concerning a tender offer or
exchange offer is made constituting a Change of Control pursuant to this Article
II, and the agreement, tender offer or exchange offer subsequently expires or is
terminated without the transaction or event being consummated, and (ii) a
"Termination Pursuant to a Change of Control" (as defined in ARTICLE I hereof)
has not occurred prior to such expiration or termination, then for purposes of
this Agreement (including, without limitation, ARTICLE I hereof) it shall be as
though such agreement was never executed or such tender offer or exchange offer
was never announced and no Change of Control event shall be deemed to have
occurred as a result.
2.3 The expiration of the two-year period after any Change of Control
event without the occurrence of a Termination Pursuant to a Change of Control
shall not have any effect on this Agreement, which shall remain in full force
and effect until its termination by written agreement of the parties or the
earlier termination of Executive's employment under circumstances not
constituting a Termination Pursuant to a Change of Control.
-62-
ARTICLE III
EXPENSES
3.1 LEGAL ACTION. If Executive determines in good faith that the
Corporation or any successor has failed to comply with its obligations under
this Agreement, or if the Corporation or any successor or any other person takes
any action to declare this Agreement void or unenforceable, or institutes any
legal action or arbitration proceeding with respect to this Agreement, the
Corporation hereby irrevocably authorizes Executive from time to time to retain
counsel of Executive's choice, at the expense of the Corporation or such
successor, to represent Executive in connection with any and all actions and
proceedings, whether by or against the Corporation, any acquiror or successor,
or any director, officer, stockholder or other person affiliated with any of the
foregoing.
3.2 EXCISE TAX MATTERS. It is the intention of the Corporation that
Executive not be required to incur any expenses associated with determination of
the amount of any "excess parachute payment" under Internal Revenue Code Section
280G or the amount of any excise tax imposed on Executive pursuant to Internal
Revenue Code Section 4999 (or any successor provisions thereto). Therefore, the
Corporation agrees to pay all expenses, including the expenses of the
Corporation 's independent certified accountant and tax counsel, related to the
determination of any excess parachute payment and excise tax.
-63-
ARTICLE IV
MISCELLANEOUS
4.1 TERMINATION OF EMPLOYMENT. This Agreement shall not in any way
obligate either the Corporation or the Bank to continue the employment of
Executive, nor shall this Agreement limit the right of the Corporation or the
Bank to terminate Executive's employment for any reason.
4.2 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto, their respective heirs,
executors, administrators, successors and, to the extent permitted hereunder,
assigns. All of the obligations of the Corporation and the Bank hereunder shall
be legally binding on any successor to the Corporation or the Bank, including
without limitation, any successor as a result of the consummation of a Change of
Control. The right of Executive to receive payments hereunder may not be
assigned, alienated, pledged or otherwise encumbered by Executive and any
attempt to do so shall be void and of no force or effect.
4.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement represents the entire
understanding between the parties hereto with respect to the subject matter
hereof and may be amended only by an instrument in writing signed by the parties
hereto. Upon the execution and delivery of this Agreement, any prior agreement
relating to the subject matter hereof will be deemed automatically terminated
and be of no further force or effect
4.4 JURISDICTION. The parties hereto consent to the exclusive
jurisdiction of the courts of the Commonwealth of Pennsylvania in any and all
actions arising hereunder.
-64-
4.5 GOVERNING LAWS. This Agreement shall be governed and construed
under the laws of the Commonwealth of Pennsylvania, without regard to the
conflict of laws principles thereof.
4.6 RABBI TRUST. The Corporation and the Bank have established a rabbi
trust. In the event of a Change of Control, the Corporation and the Bank shall,
in accordance with the terms of the trust, contribute the amounts described
therein. Thereafter, amounts payable under this Agreement shall be paid first
from the assets of such trust and the income thereon. Notwithstanding
establishment of such trust, the Corporation and the Bank shall remain obligated
to make the necessary payments under this Agreement to the extent the trust does
not, at any time, have adequate assets to pay benefits when due under this
Agreement.
4.7 UNFUNDED OBLIGATIONS. The obligations to make payments hereunder
shall be unfunded and Executive's rights to receive any payments hereunder shall
be the same as any other unsecured general creditor.
4.8 INDIVIDUAL AGREEMENT. This Agreement constitutes an agreement
solely between the Corporation, the Bank and Executive named herein. This
Agreement is intended to constitute a non-qualified arrangement for the benefit
of the Executive and shall be construed and interpreted in a manner consistent
with such intention.
4.9 HEADINGS. All headings preceding the text of the several
paragraphs hereof are inserted solely for reference and shall not constitute a
part of this Agreement, nor affect its meaning, construction or effect.
-65-
IN WITNESS WHEREOF, the Corporation and the Bank have each caused this
Agreement to be executed and attested to on its behalf by a duly authorized
officer, and Executive hereunto has set his hand and seal as of the day and year
first above written.
ATTEST: CODORUS VALLEY BANCORP, INC.
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------------- ------------------------------------
Secretary
(SEAL)
ATTEST: PEOPLESBANK, A CODORUS VALLEY COMPANY
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------------- ------------------------------------
Secretary
(SEAL)
WITNESS: EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxx X. Xxxxxx (SEAL)
------------------------------------- -------------------------------
-66-
