Exhibit 10.19
Severance Agreement by and between Omega Financial Corporation and
Xxxxxx X. Xxxxxx
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (the "Agreement") is made this 23rd day of
December, 2003, by and between OMEGA FINANCIAL CORPORATION, a corporation
organized under the laws of Pennsylvania ("Employer") and XXXXXX X. XXXXXX, an
individual ("Employee").
BACKGROUND
Employer currently employs Employee in the position of Executive Vice
President and Chief Financial Officer. In consideration of Employee's past,
present and future services to Employer, Employer desires to provide for the
payment of certain compensation and other benefits to Employee upon the
occurrence of certain events, all as more fully set forth below.
In consideration of the mutual covenants and agreements herein
contained, and intending to be legally bound hereby, the parties agree as
follows:
1. Term. The term of this Agreement shall commence on January 1, 2004 and shall
continue until December 31, 2006, unless renewed or unless terminated earlier,
as hereinafter provided. During the term of this Agreement, the Board of
Directors of Employer shall review and monitor the performance of Employee, and
prior to the end of the initial twelve-month period of the term of this
Agreement, i.e., prior to December 31, 2004, if the Board concludes that it does
not wish to extend the term of this Agreement beyond the expiration of the
initial three-year term, the Board shall so notify Employee, in which event this
Agreement shall terminate at the end of such initial three-year term. In default
of such notice by the Board of Directors, the term of this Agreement shall
automatically be extended for another year so that the term of this Agreement
shall then be a three-year term beginning on the January 1, 2005 and ending on
December 31, 2007. Thereafter, the term of this Agreement shall continually be
extended in like manner for successive renewal terms of three years each unless
the Board of Directors notifies Employee prior to the end of the first 12-month
period of each such renewal term that it does not wish to extend the term of
this Agreement beyond the expiration of the then current three year term, in
which event this Agreement shall terminate at the expiration of the then current
three year term. Hereafter in this Agreement, the initial three-year term of
this Agreement, plus all successive renewal terms, shall be collectively
referred to as the "Term." At no time shall the current term of this Agreement
be for a period in excess of three years.
Anything in this Agreement to the contrary notwithstanding, this Agreement
and the Term, if not previously terminated by the Board of Directors as set
forth above, shall terminate on the earliest of the following dates: (a) the
date Employee dies or becomes permanently disabled (i.e., upon his failure to
render services of the character which he had previously rendered to Employer,
because of his physical and mental illness or other incapacity beyond his
control for a continuous period of six months or for shorter periods aggregating
six months in any twelve month period); (b) termination of Employee's employment
with Employer for cause (as hereinafter defined); (c) upon mutual agreement of
Employer and Employee; (d) subject to Section 2 hereof, termination by
retirement or otherwise; or (e) upon the Employee reaching sixty-five (65) years
of age. In the event the Employee's employment with Employer is terminated
during the Term other than as set forth in Section 2 hereof, the Employee shall
have no rights or benefits under this Agreement, but shall be entitled to other
rights or benefits to which he might otherwise be entitled. For purposes of this
Agreement, the term "cause" shall mean (i) conviction of Employee for any
felony, fraud or embezzlement or (ii) Employee failing or refusing to comply
with the written policies or directives of Employer's Board of Directors or the
Employee being guilty of misconduct in connection with the performance of his
duties for Employer and the Employee fails to cure such non-compliance or
misconduct within twenty days after receiving written notice from Employer's
Board of Directors specifying such non-compliance or misconduct.
2. Termination. If during the Term, Employee's employment with Employer is
terminated as set forth below, Employer will pay to Employee the amounts set
forth in Sections 3 and 4 hereof and Employee shall be entitled to the benefits
set forth in Section 4 hereof:
(i) Employer terminates Employee's employment with Employer without cause;
or
(ii) the Employee terminates Employee's employment with Employer (a) for
any reason, whether with or without cause, at any time within [three] years
after a change in control of Employer (as defined hereinafter), or (b) due to
the fact that without Employee's consent and whether or not a change in control
of Employer has occurred, the nature and scope of Employee's authority with
Employer or the surviving or acquiring person are materially reduced to a level
below that which he enjoys on the date hereof, the duties or responsibilities
assigned to him are materially inconsistent with that which he has on the date
hereof, his then current base annual salary is materially reduced to a level
below that which he enjoys on the date hereof or at any time hereafter
(whichever may be greater), the fringe benefits which Employer provides Employee
on the date hereof or at any time hereafter (whichever may be greater) are
materially reduced, Employee's position or title with Employer or the surviving
or acquiring person is reduced from his current position or title with Employer,
or Employee's principal place of employment with Employer is changed to a
location greater than forty miles from his current principal place of residence,
provided, however, that for any termination by Employee under this clause, (b)
the Employee shall have first given Employer ten (10) days' written notice of
his intention to terminate his employment pursuant to this subsection (ii),
specifying the reason(s) for such termination, and provided further, that
Employer shall not have cured or remedied the reason(s) specified in such notice
prior to the expiration of such ten(10) day period.
For the purposes of this Agreement, a "change in control of
Employer" shall mean a change in control of Employer of a nature
that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities
Exchange Act of 1934, as amended, as enacted and in force on the
date hereof, whether or not Employer is subject to such reporting
requirement; provided that, without limitation, such a change of
control shall be deemed to have occurred if (i) any persons, other
than those persons in control of Employer on the date hereof,
acquires the power, directly or indirectly, to direct the management
or policies of Employer or to vote 25% or more of any class of
voting securities of Employer; or (ii) within any period of three
consecutive years during the term of this Agreement, individuals who
at the beginning, of such period constitute the Board of Directors
of Employer cease for any reason to constitute at least a majority
thereof.
3. Compensation Payments to Employee. Commencing not later than 30 days
after the date that Employee's employment with Employer is terminated pursuant
to Section 2 hereof (the "Termination Date") and subject to Employee's
compliance with Section 8 hereof, Employer shall pay annual compensation to
Employee for a period of three years following the Termination Date at a per
annum rate equal to 100% of the amount of the Employee's Highest Annual
Compensation during the three calendar years ending prior to the Termination
Date (the "Measurement Period"). For purposes of this Agreement, the term
"Highest Annual Compensation" shall mean the Employee's highest annual cash
compensation during the Measurement Period, including cash bonuses under
Employer's bonus plans, but excluding other fringe benefits. Employer agrees
that it will make the payments due under this Section 3 on the first day of each
month following the Termination Date in an amount equal to 1/12 of 100% of
Employee's Highest Annual Compensation. [Such payments to Employee shall be
coordinated with pension, annuity or other benefits or payments received by
Employee under Employer's nonqualified Supplemental Executive Retirement Plan,
as the same shall be amended from time to time (the "SERP").] The intent of this
Section 3 is that the sum of payments made under this Section 3 in any year,
when added to payments received under the SERP, will not exceed the Employee's
Highest Annual Compensation. The payments and benefits required by Sections 3
and 4 hereof shall continue despite the fact that, after the Termination Date,
the Term of this Agreement may have expired pursuant to Section 1. The payments
required by this Section 3 shall not be offset or reduced by any income or
earnings received from any other employment or other activity the Employee may
engage in during such three year period. Employee shall have no duty to mitigate
damages.
4. Other Benefits. In addition to the compensation set forth in Section 3
hereof, Employee shall be entitled to receive benefits from Employer as set
forth in this Section 4. For the periods set forth below, following the
Termination Date, Employee shall be entitled to participate in the following
programs of Employer:
(a) All medical, hospitalization and life insurance benefits shall
be continued for a period of three years except that should
subsequent employment be accepted during the three-year period
following the Termination Date, continuation of any medical,
hospitalization and life insurance benefits will be offset by
coverages provided through the Employee's subsequent employer.
(b) If permitted under the terms thereof, Employee will remain a
participant under the SERP.
(c) If not paid by a new employer, for a period of one year
following the Termination Date, reimbursement for all
reasonable relocation expenses incurred by Employee in
connection with securing new employment; provided, however, in
no event shall Employer be obligated to reimburse Employee
hereunder in excess of 1/3 of his Highest Annual Compensation.
5. Withholding. Employer may withhold from any benefits payable under this
Agreement all federal, state, city or other taxes as shall be required pursuant
to any law or governmental regulation or ruling.
6. Source of Payment. Except as set forth in Section 14 hereof, all
payments provided under this Agreement shall be paid in cash from the general
funds of Employer, no special or separate fund shall be required to be
established by Employer and the Employee shall have no right, title or interest
whatsoever in or to any investment which Employer may make to aid Employer in
meeting its obligations hereunder. Nothing contained in this Agreement, and no
action taken pursuant to its provisions, shall create or be construed to create
a trust of any kind or a fiduciary relationship between Employer and Employee or
any other person.
7. (a) No Assignment. Neither this Agreement nor any right or interest
hereunder shall be assignable by Employee or his legal representatives without
Employer's prior written consent.
(b) Attachment. Except as required by law, the right to receive
payments under this Agreement shall not be subject to anticipation, sale,
encumbrance, charge, levy, or similar process or assignment by operation of law.
8. Confidentiality and Non-Competition. All payments to Employee under
this Agreement shall be subject to Employee's compliance with the provisions of
this Section 8. If Employee fails to comply with such provisions, his right to
any future payments under this Agreement shall terminate and Employer's
obligations under this Agreement to make such payments and provide such benefits
shall cease.
(a) Employee covenants and agrees that he will not , during the term
of his employment and at any time thereafter, except with the express prior
written consent of Employer or pursuant to the lawful order of any judicial or
administrative agency of government, directly or indirectly, disclose,
communicate or divulge to any person, or use for the benefit of any person, any
knowledge or information, with respect to the conduct or details of Employer's
business which he, acting reasonably, believes or should believe to be of a
confidential nature and the disclosure of which not to be in Employer's
interest.
(b) Employee covenants and agrees that he will not, during the term
of his employment and for a period of one year thereafter, except with the
express prior written consent of Employer, directly or indirectly, whether as
employee, owner, partner, consultant, agent, director, officer, shareholder or
in any other capacity, engage in or assist any person to engage in any act or
action which he, acting reasonably, believes or should believe would be harmful
or inimical to the interests of Employer.
(c) Employee covenants and agrees that he will not, during the term
of his employment and for a period of one year thereafter, except with the
express prior written consent of Employer, in any capacity (including, but not
limited to, owner, partner, shareholder, consultant, agent, employee, officer,
director or otherwise), directly or indirectly, for his own account or for the
benefit of any person, engage or participate in or otherwise be connected with
any commercial bank which has its principal office in Centre County,
Pennsylvania except that the foregoing shall not prohibit Employee from owning
as a shareholder less than 1% of the outstanding stock of an issuer whose stock
is publicly traded.
(d) The parties agree that any breach by Employee of any of the
covenants or agreements contained in this Section 8 will result in irreparable
injury to Employer for which money damages could not adequately compensate
Employer and therefore, in the event of any such breach, Employer shall be
entitled (in addition to any other rights and remedies which it may have at law
or in equity) to have an injunction issued by any competent court enjoining and
restraining Employee and/or any other person involved therein from continuing
such breach. The existence of any claim or cause of action that Employee may
have against Employer or any other person (other than a claim for Employer's
breach of this Agreement for failure to make payments hereunder) shall not
constitute a defense or bar to the enforcement of such covenants. In the event
of an alleged breach by Employee of any of the covenants or agreements contained
in this Section 8, Employer shall continue any and all of the payments due
Employee under this Agreement until such time as a court shall enter a final and
non-appealable order finding such a breach; provided, however, that the
foregoing shall not preclude a court from ordering Employee to repay such
payments made to him for the period after the breach is determined to have
occurred or from ordering that payments hereunder be permanently terminated in
the event of a material and willful breach.
(e) If any portion of the covenants or agreements contained in this
Section 8, or the application hereof, is construed to be invalid or
unenforceable, the other portions of such covenant(s) or agreement(s) or the
application thereof shall not be affected and shall be given full force and
effect without regard to the invalid or unenforceable portions to the fullest
extent possible. If any covenant or agreement in this Section 8 is held
unenforceable because of the area covered, the duration thereof, or the scope
thereof, then the court making such determination shall have the power to reduce
the area and/or duration, and/or limit the scope thereof, and the covenant or
agreement shall then be enforceable in its reduced form.
(f) For purposes of this Section 8, the term "Employer" shall
include Employer, any successor to Employer under Section 9 hereof, and all
present and future direct and indirect subsidiaries and affiliates of Employer.
9. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon any corporate or other successor of Employer which may
acquire, directly or indirectly, by merger, consolidation, purchase, or
otherwise, all or substantially all of the assets of Employer, and shall
otherwise inure to the benefit of and be binding upon the parties hereto and
their respective heirs, executors, administrators, successors and assigns.
Nothing in the Agreement shall preclude Employer from consolidating or merging
into or with or transferring all or substantially all of its assets to another
person. In that event, such other person shall assume this Agreement and all
obligations of Employer hereunder. Upon such consolidation, merger or transfer
of assets and assumption, the "Employer" as used herein, shall mean such other
person and this Agreement shall continue in full force and effect.
10. Waivers Not to be Continued. Any waiver by a party of any breach of
this Agreement by another party shall not be construed as a continuing waiver or
as a consent to any subsequent breach by the other party.
11. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered mail, return receipt
requested, with postage prepaid, to the following addresses or to such other
address as either party may designate by like notice:
If to Employee, to:
Xx. Xxxxxx X. Xxxxxx
c/o Omega Financial Corporation 000
Xxxxxx Xxxxx
P. O. Xxx 000
Xxxxx Xxxxxxx, Xxxxxxxxxxxx 00000-0000
If to Employer, to:
Omega Financial Corporation
000 Xxxxxx Xxxxx
P. O. Xxx 000
Xxxxx Xxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Board of Directors
In all cases with a copy to:
Blank Rome LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx XX 00000-0000
Attention: Xxxxxxxxx X. Xxxxxx, Esquire
and to such other or additional person or persons as either party shall have
designated to the other party in writing by like notice.
12. Jurisdiction. Employer and Employee consent to the exclusive
jurisdiction of the courts of the Commonwealth of Pennsylvania and the United
States District Court for the Central District of Pennsylvania in any and all
actions arising hereunder.
13. Acceleration. If Employer fails to pay Employee any of the amounts due
him under Sections 3 or 4 hereof, or fails to provide any of the benefits due to
Employee under Section 4 hereof, which nonpayment or nonprovision shall continue
for 30 days after Employer receives written notice from Employee of such failure
to pay or provide benefits, as the case may be, the Employee shall have the
right to accelerate future payments of all sums due Employee under Section 3
hereof, without discount.
14. Security.
(a) In order to secure Employer's obligations to Employee under this
Agreement, Employer shall, if and when requested by the Employee, cause a
reputable bank acceptable to Employee to issue a Letter of Credit, in the face
amount of at least the sum of three times Employee's current base annual salary
on the date hereof plus $50,000 and substantially in the form attached hereto as
Exhibit "A" ("Letter of Credit"), to be issued to the Employee as beneficiary,
or in lieu thereof, establish a mutually acceptable escrow arrangement. The
Letter of Credit shall not expire sooner than one year after the date of its
issuance. Employer shall maintain the Letter of Credit in effect at all times
during the Term and any other period of time during which Employee is entitled
to any compensation or benefits under either Section 3 or 4 hereof by means of
securing renewals of the Letter of Credit from the same bank of by securing a
new Letter of Credit from some other reputable bank acceptable to Employee.
(b) Employee agrees that he will not present a draft under the
Letter of Credit for payment unless he shall have first made written demand on
Employer for direct payment of the amount sought and Employer shall not have
made full payment in cash to the Employee as required by this Agreement within
30 days after the date of delivery of the written demand. Employee shall not
draw any funds under the Letter of Credit in respect of costs or expenses
already reimbursed to him by Employer.
15. Indemnity. If Employer fails to pay Employee any of the amounts due
him under Sections 3 or 4 hereof or fails to provide Employee with any of the
benefits due him under Section 4 hereof, 30 days after having received written
notice from Employee of such failure, the Employee shall be
entitled to full reimbursement from Employer for all costs and expenses
(including, but not limited to, reasonable attorneys' fees) incurred by Employee
in enforcing his rights under this Agreement.
16. General Provisions.
(a) Each of Employer's obligations and liabilities hereunder shall
not be affected or impaired by the unenforceability, invalidity, or illegality
of any other term, condition, covenant, obligation or agreement under this
Agreement, whether under the National Bank Act or otherwise.
(b) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof, and supersedes and replaces
all prior agreements between the parties. No amendment, supplement, waiver or
termination of any of the provisions hereof shall be effective unless in writing
and signed by the party against whom it is sought to be enforced. Any written
amendment, supplement, waiver or termination hereof executed by Employer and
Employee shall be binding upon them and upon all other persons, without the
necessity of securing the consent of any other person and no person shall be
deemed to be a third party beneficiary under this Agreement.
(c) This Agreement shall not limit or infringe upon the right of
Employer to terminate the employment of Employee at any time for any reason, nor
upon the right of Employee to terminate his employment with Employer.
(d) The term "person" as used in this Agreement means a natural
person, joint venture, corporation, limited liability company, sole
proprietorship, trust, estate, partnership, cooperative, association, non-profit
organization or any other legally cognizable entity.
(e) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same Agreement.
(f) No failure on the part of any party hereto to exercise and no
delay in exercising any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
remedy hereunder preclude any other of further exercise thereof or the exercise
of any other rights, power or remedy.
(g) The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall in no way restrict or
modify any of the terms or provisions hereof.
(h) This Agreement shall be governed and construed and the legal
relationships of the parties determined in accordance with the laws of the
Commonwealth of Pennsylvania applicable to contracts executed and to be
performed solely in the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Severance
Agreement as of the date first above written.
OMEGA FINANCIAL CORPORATION
Attest: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxx
Title: Senior Vice President Title: Chairman, CEO & President
Witness: /s/ Xxxxxx X. Xxxxx /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxx XXXXXX X. XXXXXX as Employee
