EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT
10.6
THIS
AGREEMENT, made and entered into as of January 20, 2005 (the “Effective
Date”), by and among Royal Financial, Inc. (hereinafter referred to as
“Royal Financial”), Royal Savings Bank (the “Bank” and together
with Royal Financial, hereinafter the “Employer”), and Xxxxxx Xxxxx
(hereinafter called the “Executive”).
W
I T
N E S S E T H T H A T:
WHEREAS,
the Employer desires to continue to employ the Executive as Senior
Vice
President – Loans, and the Executive desires to continue in such
employment;
NOW,
THEREFORE, in consideration of the mutual promises herein contained and subject
to the conditions precedent set forth herein, the parties agree as
follows:
1. Employment
and Term.
(a) Employment. Royal
Financial shall, and shall cause the Bank to, employ the Executive as the
Senior
Vice President – Loans and Secretary of the Company and the Bank, and the
Executive shall so serve, for the term set forth in
Paragraph 1(b).
(b) Term. The
Executive’s employment under this Agreement shall commence on the Effective Date
and extend through January 20, 2007, subject to the extension of such term
as hereinafter provided and subject to earlier termination as provided in
Paragraph 7. The term of this Agreement shall automatically be
extended for an additional year as of January 20,
2007 and each anniversary date thereof unless, no later than ninety (90)
days
prior to any such renewal date, either the board of directors of Royal Financial
(the “Board”), or a duly authorized committee thereof, on behalf of the
Employer, or the Executive gives written notice to the other, in accordance
with
Paragraph 14, that the term of this Agreement shall not be so
extended.
2. Duties
and Responsibilities.
(a) The
duties and responsibilities of the Executive shall be of an executive nature
as
shall be required by the Employer in the conduct of its business. The
Executive’s powers and authority shall be as prescribed by the by-laws of the
Employer, if applicable, and shall include all those presently delegated
to the
Executive, together with the performance of such other duties and
responsibilities as the Chief Executive Officer of the Employer may from
time to
time assign to the Executive not inconsistent with the Executive’s position(s)
with the Employer. The Executive recognizes, that during the period
of the Executive’s employment hereunder, the Executive owes an undivided duty of
loyalty to the Employer, and agrees to devote the Executive’s entire business
time and attention to the performance of said duties and responsibilities
and to
use the Executive’s best efforts to promote and develop the business of the
Employer. Recognizing and acknowledging that it is essential for the
protection and enhancement of the name and business of the Employer and the
goodwill pertaining thereto, the Executive shall perform his duties under
this
Agreement professionally, in accordance with the
applicable
laws, rules and regulations and such standards, policies and procedures
established by the Employer and the industry from time to time. The
Executive will not perform any duties for any other business without the
prior
written consent of the Employer, but may engage in charitable, civic or
community activities, provided that such duties or activities do not materially
interfere with the proper performance of the Executive’s duties under this
Agreement.
(b) Notwithstanding
that this Agreement provides for the employment of the Executive in the
Executive’s capacity as Senior Vice President – Loans and Secretary of the
Company and the Bank, nothing herein contained shall assure the Executive
of,
nor in any manner shall be construed to constitute an agreement by the Employer
to the, continued employment of the Executive after the expiration or
termination of this Agreement in such capacity or in any other
capacity.
3. Base
Salary. For services performed by the Executive for the Employer
pursuant to this Agreement during the period of employment as provided in
Paragraph 1(b) hereof, the Employer shall pay the Executive a base salary
at the rate of ninety-eight thousand eight hundred eighty dollars ($98,880)
per
year, payable in substantially equal installments in accordance with the
Employer’s regular payroll practices. The Executive’s base salary
(with any increases under this Paragraph 3) shall not be subject to reduction
without the Executive’s written consent. Any compensation which may
be paid to the Executive under any additional compensation or incentive plan
of
the Employer or which may be otherwise authorized from time to time by the
Board
(or an appropriate committee thereof) shall be in addition to the base salary
to
which the Executive shall be entitled under this
Agreement. Executive’s base salary shall be subject to review from
time to time, and the Employer may (but is not required to) increase the
base
salary as the Board, in its discretion, may determine.
4. Annual
Bonuses. For each fiscal year during the term of employment, the
Executive shall be eligible to receive a bonus in the amount, if any, as
may be
determined from time to time by the Board in its discretion.
5. Equity
Incentive Compensation. During the term of employment hereunder,
the Executive shall be eligible to participate in any equity-based incentive
compensation plan or program adopted by the Employer.
6. Other
Benefits. In addition to the compensation described in
Paragraphs 3, 4 and 5, above, the Executive shall also be entitled to the
following:
(a) Participation
in Benefit Plans. The Executive shall be entitled to participate
in such life insurance, disability, medical, dental, pension, profit sharing
and
retirement plans and other programs as may be made generally available from
time
to time by the Employer for the benefit of executives of the Executive’s level
or its employees generally.
(b) Vacation. The
Executive shall be entitled to such number of days of vacation with pay during
each calendar year during the period of employment in accordance with the
Employer’s applicable personnel policy as in effect from time to
time.
(c) Executive
Perquisites. The Employer shall furnish Executive with such
perquisites as are provided from time to time by the Employer to its officers
generally and are
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suitable
to the Executive’s position, adequate for the performance of the Executive’s
duties hereunder, and reasonable in the circumstances.
(d) Expense
Reimbursement. The Employer shall reimburse the Executive for all
reasonable expenses incurred by the Executive in performing services hereunder,
which are incurred and accounted for in accordance with the Employer’s policies
and procedures applicable thereto.
7. Termination. Unless
earlier terminated in accordance with the following provisions of this
Paragraph 7, the Employer shall continue to employ the Executive and the
Executive shall remain employed by the Employer during the entire term of
this
Agreement as set forth in Paragraph 1(b). Paragraph 8
hereof sets forth certain obligations of the Employer in the event that the
Executive’s employment hereunder is terminated. Certain capitalized
terms used in this Paragraph 7 and in Paragraph 8 hereof are defined
in Paragraph 7(d), below. In the event of termination of the
Executive’s employment with the Employer for any reason, or if the Executive is
required by the Board, the Executive agrees to resign, and shall automatically
be deemed to have resigned, from any offices (including any directorship)
the
Executive holds with the Employer and/or any of its affiliates effective
as of
the termination date of the Executive’s employment hereunder, or, if applicable,
effective as of a date selected by the Board; provided, however, that the
foregoing resignation shall not prejudice or otherwise affect the Executive’s
rights and obligations, if any, under this Agreement.
(a) Death
or Disability. Except to the extent otherwise provided in
Paragraphs 8, 11 and 12 with respect to death benefits and certain
post-Date of Termination obligations of the parties, this Agreement shall
terminate immediately as of the Date of Termination in the event of the
Executive’s death or in the event that the Executive becomes Disabled (as
hereinafter defined). The Board shall promptly give the Executive
written notice of any such determination of the Executive’s Disability and of
any decision of the Board to terminate the Executive’s employment by reason
thereof. In the event of Disability, until the Date of Termination,
the base salary payable to the Executive under Paragraph 3 hereof shall be
reduced dollar-for-dollar by the amount of disability benefits, if any, paid
to
the Executive in accordance with any disability policy or program of the
Employer.
(b) Discharge
for Cause. In accordance with the procedures hereinafter set
forth, the Board may discharge the Executive from the Executive’s employment
hereunder for Cause (as hereinafter defined). Except to the extent otherwise
provided in Paragraphs 8, 11 and 12 with respect to certain post-Date
of Termination obligations of the parties, this Agreement shall terminate
immediately as of the Date of Termination in the event the Executive is
discharged for Cause. Any discharge of the Executive for Cause shall
be communicated by a Notice of Termination to the Executive given in accordance
with Paragraph 14 of this Agreement.
(c) Termination
for Other Reasons. The Employer may discharge the Executive
without Cause by giving written notice to the Executive in accordance with
Paragraph 14. The Executive may resign from the Executive’s
employment with or without Good Reason, without liability to the Employer,
by
giving written notice to the Employer in accordance with Paragraph 14 at
least thirty (30) days prior to the Date of Termination;
provided,
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however,
that no resignation shall be treated as a resignation for Good Reason unless
the
written notice thereof is given within sixty (60) days after the occurrence
which constitutes “Good Reason” or during the ninety (90) day period
described in the final sentence of Paragraph 7(d)(vi); provided, further,
that the Employer retains the right after proper notice of the Executive’s
voluntary termination to require the Executive to cease the Executive’s
employment immediately. Except to the extent otherwise provided in
Paragraphs 8, 11 and 12 with respect to certain post-Date of Termination
obligations of the parties, this Agreement shall terminate immediately as
of the
Date of Termination in the event the Executive is discharged without Cause
or
resigns for any reason or no reason.
(d) Definitions. For
purposes of this Agreement, the following capitalized terms shall have the
meanings set forth below:
(i) “Accrued
Obligations” shall mean, as of the Date of Termination, the sum of
(A) the Executive’s base salary under Paragraph 3 through the Date of
Termination to the extent not theretofore paid, (B) the amount of any
deferred compensation and other cash compensation accrued by the Executive
as of
the Date of Termination to the extent not theretofore paid, (C) any
vacation pay, expense reimbursements and other cash entitlements accrued
by the
Executive as of the Date of Termination to the extent not theretofore paid,
(D) any grants and awards vested or accrued under any equity-based
incentive compensation plan or program and (E) all other benefits which
have accrued as of the Date of Termination. For the purpose of this
Paragraph 7(d)(i), except as provided in the applicable plan, program or
policy, amounts shall be deemed to accrue ratably over the period during
which
they are earned, but no discretionary compensation shall be deemed earned
or
accrued until it is specifically approved by the Board in accordance with
the
applicable plan, program or policy.
(ii) “Cause”
shall mean (A) the Executive’s willful and continued (for a period of not
less than ten (10) business days after written notice thereof) failure to
perform substantially the duties of his employment (other than as a result
of
physical or mental incapacity, or while on vacation); or (B) the
Executive’s engaging in illegal conduct or gross misconduct which is materially
and demonstrably injurious to the Employer; or (C) the Executive’s
conviction of a felony involving moral turpitude; provided, however, that
no act
or omission by the Executive shall constitute Cause hereunder unless the
Employer has given detailed written notice thereof to the Executive, and
the
Executive has failed to remedy such act or omission.
(iii) “Change
in Control” shall mean the occurrence of any one of the following
events:
(A) Any
“person” (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), other than (i) a trustee or
other fiduciary holding securities under an employee benefit plan of Royal
Financial or any of its subsidiaries, or (ii) a corporation owned directly
or indirectly by the stockholders of Royal Financial in substantially the
same
proportions as their ownership of stock of Royal Financial, is or becomes
the
“beneficial owner” (as defined in Rule 13d-3 under said Act), directly
or
4
indirectly,
of securities of Royal Financial representing 25% or more of the total
voting
power of the then outstanding shares of capital stock of Royal Financial
entitled to vote generally in the election of directors (the “Voting
Stock”), provided, however, that the following shall not constitute a change
in control: (1) such person becomes a beneficial owner of 25% or
more of the Voting Stock as the result of an acquisition of such Voting
Stock
directly from Royal Financial, or (2) such person becomes a beneficial
owner of 25% or more of the Voting Stock as a result of the decrease in
the
number of outstanding shares of Voting Stock caused by the repurchase of
shares
by Royal Financial, or
(B) During
any period of two consecutive years, individuals (the “Incumbent Board”),
who at the beginning of such period constitute the Board, and any new director,
whose election by the Board or nomination for election by Royal Financial’s
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning
of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof, or
(C) Consummation
of a reorganization, merger or consolidation or the sale or other disposition
of
all or substantially all of the assets of Royal Financial (a “Business
Combination”), in each case, unless (1) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of
the
Voting Stock immediately prior to such Business Combination beneficially
own,
directly or indirectly, more than 50% of the total voting power represented
by
the voting securities entitled to vote generally in the election of directors
of
the corporation resulting from the Business Combination (including, without
limitation, a corporation which as a result of the Business Combination owns
Royal Financial or all or substantially all of Royal Financial’s assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to the Business Combination
of
the Voting Stock of Royal Financial, and (2) at least a majority of the
members of the board of directors of the corporation resulting from the Business
Combination were members of the Incumbent Board at the time of the execution
of
the initial agreement, or action of the Incumbent Board, providing for such
Business Combination; or
(D) Approval
by the stockholders of Royal Financial of a plan of complete liquidation
or
dissolution of Royal Financial.
The
Board
has final authority to construe and interpret the provisions of the foregoing
Paragraphs (A), (B), (C) and (D) and to determine the exact date on which a
Change in Control has been deemed to have occurred thereunder.
(iv) “Date
of Termination” shall mean (A) in the event of a discharge of the
Executive for or without Cause, the date the Executive receives a Notice
of
Termination, or any later date specified in such Notice of Termination, as
the
case may be, (B) in the event of a resignation by the Executive, the date
specified in the written
5
notice
to
the Employer, which date shall be no less than thirty (30) days from the
date of such written notice (or such earlier date as the Employer may elect
in
its sole discretion), (C) in the event of the Executive’s death, the date
of the Executive’s death, and (D) in the event of termination of the
Executive’s employment by reason of Disability pursuant to Paragraph 7(a),
the date the Executive receives written notice of such
termination.
(v) “Disabled”
and “Disability” shall mean that the Executive will be deemed to be
disabled upon the earlier of (i) the end of a six (6) consecutive month
period, or an aggregate period of nine (9) months out of any consecutive
twelve (12) months, during which, by reason of physical or mental injury or
disease, the Executive has been unable to perform substantially all of the
Executive’s usual and customary duties under this Agreement or (ii) the
date that a reputable physician selected by the Board, and as to whom the
Executive has no reasonable objection, determines in writing that the Executive
will, by reason of physical or mental injury or disease, be unable to perform
substantially all of the Executive’s usual and customary duties under this
Agreement for a period of at least six (6) consecutive
months. If any question arises as to whether the Executive is
Disabled, upon reasonable request therefore by the Board, the Executive shall
submit to a reasonable medical examination for the purpose of determining
the
existence, nature and extent of any such disability.
(vi) “Good
Reason” shall mean the occurrence, other than in connection with a
discharge, of any of the following without the Executive’s
consent: (A) the Executive is not re-elected or is removed from
the positions with the Employer set forth in Paragraph 1(a), other than as
a result of the Executive’s election or appointment to positions of equal or
superior scope and responsibility; or (B) the Executive shall fail to be
vested by the Employer with the power and authority of any of said positions,
excluding for this purpose any isolated action not taken in bad faith and
which
is remedied by the Employer promptly after receipt of written notice thereof
given by the Executive in accordance with Paragraph 14; or (C) any
failure by the Employer to materially comply with any of the provisions of
this
Agreement, other than any isolated, insubstantial and inadvertent failure
not
occurring in bad faith and which is remedied by the Employer promptly after
receipt of written notice thereof given by the Executive in accordance with
Paragraph 14; or (D) the Employer requiring the Executive to be based
at an office or location which is more than twenty (20) miles from any
location of Royal Financial, the Bank or any of their subsidiaries as of
the
Effective Date or any renewal date of the extended term of this
Agreement. In addition, any termination by the Executive during the
ninety (90) day period beginning on the first anniversary of the date of a
Change in Control shall be deemed to be for “Good Reason.”
(vii) “Notice
of Termination” shall mean a written notice which (A) indicates the
specific termination provision in this Agreement relied upon, (B) sets
forth in reasonable detail the facts and circumstances claimed to provide
a
basis for termination of the Executive’s employment under the provision so
indicated and (C) if the Date of Termination is to be other than the date
of receipt of such notice or the date otherwise specified under this Agreement,
specifies the termination date.
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8. Obligations
of the Employer Upon Termination. The following provisions
describe the obligations of the Employer to the Executive under this Agreement
upon termination of employment. However, except as explicitly
provided in this Agreement, nothing in this Agreement shall limit or otherwise
adversely affect any rights which the Executive may have under applicable
law,
under any other agreement with the Employer or any of its affiliates or
subsidiaries, or under any compensation or benefit plan, program, policy
or
practice of the Employer or any of its affiliates or subsidiaries.
(a) Death,
Disability, Discharge for Cause, or Resignation without Good
Reason. In the event this Agreement terminates pursuant to
Paragraph 7(a) by reason of the death or Disability of the Executive,
pursuant to Paragraph 7(b) by reason of the discharge of the Executive by
the Employer for Cause, or pursuant to Paragraph 7(c) by reason of the
resignation of the Executive other than for Good Reason, the Employer shall
pay
to the Executive, or the Executive’s heirs or estate in the event of the
Executive’s death, all Accrued Obligations in a lump sum in cash within thirty
(30) days after the Date of Termination; provided, however, that any
portion of the Accrued Obligations which consists of bonus, deferred
compensation, incentive compensation, insurance benefits or other employee
benefits shall be determined and paid in accordance with the terms of the
relevant plan or policy as applicable to the Executive.
(b) Discharge
without Cause or Resignation with Good Reason. In the event that
this Agreement terminates pursuant to Paragraph 7(c) by reason of the
discharge of the Executive by the Employer other than for Cause, death or
Disability or by reason of the resignation of the Executive for Good
Reason:
(i) The
Employer shall pay all Accrued Obligations to the Executive in a lump sum
in
cash within thirty (30) days after the Date of Termination; provided,
however, that any portion of the Accrued Obligations which consists of bonus,
deferred compensation, incentive compensation, insurance benefits or other
employee benefits shall be determined and paid in accordance with the terms
of
the relevant plan or policy as applicable to the Executive;
(ii) Within
thirty (30) days after the Date of Termination, the Employer shall pay to
the Executive a bonus for the year during which termination occurs, calculated
as a prorata portion of the Executive’s prior year’s bonus amount (if any) based
on the number of days elapsed during the year through the Date of
Termination;
(iii) Severance
payments equal to one hundred percent (100%) of the sum of (A) the
Executive’s then-current annual base salary, plus (B) the average of the
sum of the bonus amounts earned by the Executive with respect to the three
(3) calendar years (or such fewer number of years as Executive has been
employed) immediately preceding the calendar year in which the Executive’s Date
of Termination occurs, payable in substantially equal monthly installments
for a
period of twelve (12) months (the “Severance Period”) in accordance
with the Employer’s regular payroll practices; and
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(iv) Continuation
for the Severance Period of the Executive’s right to maintain COBRA continuation
coverage under the applicable plans at premium rates on the same “cost-sharing”
basis as the applicable premiums paid for such coverage by active employees
as
of the Date of Termination.
(c) Effect
of Change in Control. In the event that a Change in Control
occurs and this Agreement thereafter terminates pursuant to Paragraph 7(c)
by reason of the discharge of the Executive by the Employer other than for
Cause, death or Disability, or by reason of the resignation of the Executive
for
Good Reason:
(i) The
Employer shall pay all Accrued Obligations to the Executive in a lump sum
in
cash within thirty (30) days after the Date of Termination; provided,
however, that any portion of the Accrued Obligations which consists of bonus,
deferred compensation, incentive compensation, insurance benefits or other
employee benefits shall be determined and paid in accordance with the terms
of
the relevant plan or policy as applicable to the Executive;
(ii) Within
thirty (30) days after the Date of Termination, the Employer shall pay to
the Executive a bonus for the year during which termination occurs, calculated
as a prorata portion of the Executive’s prior year’s bonus amount (if any) based
on the number of days elapsed during the year through the Date of
Termination;
(iii) The
Employer shall pay the Executive a lump sum payment within thirty (30) days
after such termination of employment in the amount of two (2) times the sum
of
the following:
(A) the
amount of the Executive’s annual base salary determined as of the Date of
Termination, or the date immediately preceding the date of the Change in
Control, whichever is greater; plus
(B) the
greater of (A) the Executive’s bonus amount, if any, for the calendar year
immediately preceding that in which the Date of Termination occurs, or
(B) the average of the sum of the bonus amounts earned by the Executive
with respect to the three (3) calendar years (or such fewer number of years
as Executive has been employed) immediately preceding the calendar year in
which
the Executive’s Date of Termination occurs, or if such sum would be greater,
with respect to the three (3) calendar years immediately preceding the
calendar year of the date of the Change in Control; plus
(C) the
sum of:
(I) the
annual value of the contributions that would have been expected to be made
or
credited by the Employer to, and benefits expected to be accrued under, the
qualified and non-qualified employee profit sharing, 401(k), pension and
any
other benefit plans maintained by the Employer to or for the benefit of the
Executive; plus
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(II) the
annual value of the Other Benefits described in Paragraph 6(a) and (c)
above.
Notwithstanding
the foregoing, if a Change in Control occurs and this Agreement is terminated
prior to the Change in Control pursuant to Paragraph 7(c) by reason of the
discharge of the Executive by the Employer other than for Cause, death or
Disability or by reason of the resignation of the Executive for Good Reason,
then the Executive shall be deemed for purposes of this Paragraph 8(c) to
have so terminated pursuant to Paragraph 7(c) immediately following the
date the Change in Control occurs if it is reasonably demonstrated by the
Executive that such earlier termination was (i) at the request of a third
party who had taken steps reasonably calculated to effect the Change in Control,
or (ii) otherwise arose, or the circumstances that precipitated the
termination otherwise arose, in connection with or in anticipation of the
Change
in Control.
(d) Effect
on Other Amounts. The payments provided for in this
Paragraph 8 shall be in addition to all other sums then payable and owing
to the Executive, shall be subject to applicable federal and state income
and
other withholding taxes and shall be in full settlement and satisfaction
of all
of the Executive’s claims and demands. Upon such termination of this
Agreement, the Employer shall have no rights or obligations under this
Agreement, other than its obligations under this Paragraph 8, and the
Executive shall have no rights and obligations under this Agreement, other
than
the Executive’s obligations under Paragraphs 11 and 12 hereof (to the
extent applicable); provided, however, termination of this Agreement shall
not
terminate the obligation of the Executive to pay to the Employer any amounts
for
which the Executive may be liable to the Employer under any provision of
the
Xxxxxxxx-Xxxxx Act of 2002 (including, without limitation, Section 304 of
such
Act), or any rules and regulations promulgated thereunder, as amended from
time
to time.
(e) Conditions. Any
payments or benefits made or provided pursuant to this Paragraph 8 are
subject to the Executive’s:
(i) compliance
with the provisions of Paragraphs 11 and 12 hereof (to the extent
applicable);
(ii) delivery
to the Employer of an executed Release and Severance Agreement, which shall
be
substantially in the form attached hereto as Exhibit A, with such changes
therein or additions thereto as needed under then applicable law to give
effect
to its intent and purpose; and
(iii) delivery
to the Employer of a resignation from all offices, directorships and fiduciary
positions with the Employer, its affiliates and employee benefit
plans.
Notwithstanding
the due date of any post-employment payments, any amounts due under this
Paragraph 8 shall not be due until after the expiration of any revocation
period applicable to the Release and Severance Agreement.
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9. Certain
Additional Payments by the Employer.
(a) Anything
in this Agreement to the contrary notwithstanding, in the event it shall
be
determined that any payment or distribution by the Employer to or for the
benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this
Paragraph 9) (a “Payment”) would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended, (the “Code”)
or if any interest or penalties are incurred by the Executive with respect
to
such excise tax (such excise tax, together with any such interest and penalties,
being hereinafter collectively referred to as the “Excise Tax”), then the amount
of the Payment payable to the Executive shall be reduced (a “Reduction”) to the
extent necessary so that no portion of such Payment is subject to the Excise
Tax.
(b) All
determinations required to be made under this Paragraph 9 and the
assumptions to be utilized in arriving at such determination, shall be made
by
the independent public accountants then regularly retained by the Employer
(the
“Accounting Firm”) in consultation with counsel acceptable to Executive, which
shall promptly provide detailed supporting calculations both to the Employer
and
the Executive following any determination that a Reduction is
necessary. In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting a Change
in
Control, the Executive shall appoint another nationally recognized accounting
firm to make the determinations required hereunder (which accounting firm
shall
then be referred to as the Accounting Firm hereunder) in consultation with
counsel acceptable to Executive. All fees and expenses of the
Accounting Firm and such counsel shall be borne solely by the
Employer. Any good faith determination by the Accounting Firm shall
be binding upon the Employer and the Executive.
10. Enforcement. In
the event the Employer shall fail to pay any amounts due to the Executive
under
this Agreement as they come due, the Employer agrees to pay interest on such
amounts at a rate equal to the prime rate plus four percent (4%) per annum
(as
from time to time published in The Wall Street Journal (Midwest
Edition)). The Employer agrees that Executive and any successor
shall be entitled to recover all costs of successfully enforcing any provision
of this Agreement, including reasonable attorneys fees and costs of litigation,
if Executive is the prevailing party.
11. Confidential
Information.
The
Executive shall not at any time
during or following the Executive’s employment with the Employer, directly or
indirectly, disclose or use on the Executive’s behalf or another’s behalf,
publish or communicate, except in the course of the Executive’s employment and
in the pursuit of the business of the Employer or any of its subsidiaries
or
affiliates, any proprietary information or data of the Employer or any of
its
subsidiaries or affiliates, which is not generally known to the public or
which
could not be recreated through public means and which the Employer may
reasonably regard as confidential and proprietary. The Executive
recognizes and acknowledges that all knowledge and information which the
Executive has or may acquire in the course of the Executive’s employment, such
as, but not limited to the business, developments, procedures, techniques,
activities or services of the Employer or the
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business
affairs and activities of any customer, prospective customer, individual
firm or
entity doing business with the Employer are its sole valuable property,
and
shall be held by Executive in confidence and in trust for their sole
benefit. All records of every nature and description which come into
the Executive’s possession, whether prepared by the Executive, or otherwise,
shall remain the sole property of the Employer and upon termination of
the
Executive’s employment for any reason, said records shall be left with the
Employer as part of its property.
12. Non-Competition;
Non-Solicitation. The Executive acknowledges that the Employer
and its affiliates and subsidiaries by nature of their respective businesses
have a legitimate and protectable interest in their clients, customers and
employees with whom they have established significant relationships as a
result
of a substantial investment of time and money, and but for the Executive’s
employment hereunder, the Executive would not have had contact with such
clients, customers and employees. The Executive agrees that during
the period of the Executive’s employment with the Employer and for a period of
one (1) year after termination of the Executive’s employment for any reason (the
“Non-Compete Period”), the Executive will not (except in the Executive’s
capacity as an employee of the Employer) directly or indirectly, for the
Executive’s own account, or as an agent, employee, director, owner, partner, or
consultant of any corporation, firm, partnership, joint venture, syndicate,
sole
proprietorship or other entity which has a place of business (whether as
a
principal, division, subsidiary, affiliate, related entity, or otherwise)
located within the Market Area (as hereinafter defined):
(a) engage,
directly or indirectly, in any business that provides banking products or
services or that otherwise competes in any way with the Employer or any of
its
subsidiaries or affiliates;
(b) solicit
or induce, or attempt to solicit or induce any client or customer of the
Employer or any of its subsidiaries or affiliates not to do business with
the
Employer or any of its subsidiaries or affiliates; or
(c) solicit
or induce, or attempt to solicit or induce, any employee or agent of the
Employer or any of its subsidiaries or affiliates to terminate his or her
relationship with the Employer or any of its subsidiaries or
affiliates.
For
purposes of this Agreement, “Market Area” shall be an area encompassed
within a twenty (20) mile radius surrounding any location of Royal
Financial, the Bank or any of their subsidiaries as of the Date of Termination
of employment.
The
foregoing provisions shall not be deemed to prohibit (i) the Executive’s
ownership, not to exceed five percent (5%) of the outstanding shares, of
capital
stock of any corporation whose securities are publicly traded on a national
or
regional securities exchange or in the over-the-counter market or (ii) the
Executive serving as a director of other corporations and entities to the
extent
these directorships do not inhibit the performance of the Executive’s duties
hereunder or conflict with the business of the Employer.
13. Remedies.
(a) The
Executive acknowledges that the restraints and agreements herein provided
are
fair and reasonable, that enforcement of the provisions of Paragraphs 11
and 12 will
11
not
cause
the Executive undue hardship and that said provisions are reasonably necessary
and commensurate with the need to protect the Employer and its legitimate
and
proprietary business interests and property from irreparable
harm. The Executive acknowledges and agrees that (a) a breach of
any of the covenants and provisions contained in Paragraphs 11 or 12 above,
will result in irreparable harm to the business of the Employer, (b) a
remedy at law in the form of monetary damages for any breach by the Executive
of
any of the covenants and provisions contained in Paragraphs 11 and 12 is
inadequate, (c) in addition to any remedy at law or equity for such breach,
the Employer shall be entitled to institute and maintain appropriate proceedings
in equity, including a suit for injunction to enforce the specific performance
by Executive of the obligations hereunder and to enjoin Executive from
engaging
in any activity in violation hereof and (d) the covenants on the
Executive’s part contained in Paragraphs 11 and 12, shall be construed as
agreements independent of any other provisions in this Agreement, and the
existence of any claim, setoff or cause of action by the Executive against
the
Employer, whether predicated on this Agreement or otherwise, shall not
constitute a defense or bar to the specific enforcement by the Employer
of said
covenants. In the event of a breach or a violation by the Executive
of any of the covenants and provisions of this Agreement, the running of
the
Non-Compete Period (but not of Executive’s obligation thereunder) shall be
tolled during the period of the continuance of any actual breach or
violation.
(b) The
parties hereto agree that the covenants set forth in Paragraphs 11 and 12
are reasonable with respect to their duration, geographical area and
scope. If the final judgment of a court of competent jurisdiction
declares that any term or provision of Paragraph 11 or 12 is invalid or
unenforceable, the parties agree that the court making the determination
of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term
or
provision that is valid and enforceable and that comes closest to expressing
the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
14. Notices. Any
notice or other communication required or permitted to be given hereunder
shall
be determined to have been duly given to any party (a) upon delivery to the
address of such party specified below if delivered personally or by courier;
(b) upon dispatch if transmitted by telecopy or other means of facsimile,
provided a copy thereof is also sent by regular mail or courier; (c) within
forty-eight (48) hours after deposit thereof in the U.S. mail, postage
prepaid, for delivery as certified mail, return receipt requested; or
(d) within twenty-four (24) hours after deposit thereof with a reputable
overnight courier (charges prepaid), addressed, in any case to the party
at the
following address(es) or telecopy numbers:
(a) If
to Executive, at the address set forth on the signature
page hereof.
(b) If
to the Employer:
Royal
Savings Bank
0000
X.
Xxxxxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
12
Attn:
Chief Executive Officer
Telecopy
No.: (000) 000-0000
with
a
copy to:
Vedder,
Price, Xxxxxxx & Kammholz, P.C.
000
Xxxxx
XxXxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000-0000
Attn: Xxxxxx
X. XxXxx, XX
Telecopy
No.: (000) 000-0000
or
to
such other address(es) or telecopy number(s) as any party may designate by
written notice in the aforesaid manner.
15. Full
Settlement; No Mitigation. The Employer’s obligation to make the
payments and provide the benefits provided for in this Agreement and otherwise
to perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action which the
Employer may have against the Executive or others. In no event shall
the Executive be obligated to seek other employment or take any other action
by
way of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement, and such amounts shall not be reduced whether
or
not the Executive obtains other employment.
16. Payment
in the Event of Death. In the event payment is due and owing by
the Employer to the Executive under this Agreement upon the death of the
Executive, payment shall be made to such beneficiary as the Executive may
designate in writing, or failing such designation, then the executor of the
Executive’s estate, in full settlement and satisfaction of all claims and
demands on behalf of the Executive, shall be entitled to receive all amounts
owing to the Executive at the time of the Executive’s death under this
Agreement. Such payments shall be in addition to any other death
benefits of the Employer and in full settlement and satisfaction of all
severance benefit payments provided for in this Agreement.
17. Entire
Understanding. This Agreement constitutes the entire
understanding between the parties relating to Executive’s employment hereunder
and supersedes and cancels all prior written and oral understandings and
agreements with respect to such matters and except for the terms and provisions
of any employee benefit or other compensation plans (or any agreements or
awards
thereunder), referred to in this Agreement, or as otherwise expressly
contemplated by this Agreement.
18. Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of the heirs and representatives of the Executive and the successors
and
assigns of the Employer. The Employer shall require any successor
(whether direct or indirect, by purchase, merger, reorganization, consolidation,
acquisition of property or stock, liquidation, or otherwise) to all or a
substantial portion of its assets, by agreement in form and substance reasonably
satisfactory to the
Executive, expressly to assume and agree to perform this Agreement in the
same
manner and to the same extent that the Employer would be required to perform
this Agreement if no such
13
succession
had taken place. Regardless of whether such an agreement is executed,
this Agreement shall be binding upon any successor of the Employer in accordance
with the operation of law, and such successor shall be deemed the “Employer” for
purposes of this Agreement.
19. Tax
Withholding. The Employer shall provide for the withholding of
any taxes required to be withheld by federal, state, or local law with respect
to any payment in cash, shares of stock and/or other property made by or
on
behalf of the Employer to or for the benefit of the Executive under this
Agreement or otherwise. The Employer may, at its
option: (a) withhold such taxes from any cash payments owing
from the Employer to the Executive, (b) require the Executive to pay to the
Employer in cash such amount as may be required to satisfy such withholding
obligations and/or (c) make other satisfactory arrangements with the
Executive to satisfy such withholding obligations.
20. No
Assignment. Except as otherwise expressly provided herein, this
Agreement is not assignable by any party and no payment to be made hereunder
shall be subject to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or other charge.
21. Execution
in Counterparts. This Agreement may be executed by the parties
hereto in two (2) or more counterparts, each of which shall be deemed to be
an original, but all such counterparts shall constitute one and the same
instrument, and all signatures need not appear on any one
counterpart.
22. Jurisdiction
and Governing Law. Jurisdiction over disputes with regard to this
Agreement shall be exclusively in the courts of the State of Illinois, and
this
Agreement shall be construed, interpreted and enforced in accordance with
and
governed by the laws of the State of Illinois, without regard to the choice
of
laws provisions of such State.
23. Severability. If
any provision of this Agreement shall be adjudged by any court of competent
jurisdiction to be invalid or unenforceable for any reason, such judgment
shall
not affect, impair or invalidate the remainder of this
Agreement. Furthermore, if the scope of any restriction or
requirement contained in this Agreement is too broad to permit enforcement
of
such restriction or requirement to its full extent, then such restriction
or
requirement shall be enforced to the maximum extent permitted by law, and
the
Executive consents and agrees that any court of competent jurisdiction may
so
modify such scope in any proceeding brought to enforce such restriction or
requirement.
24. Survival. Provisions
of this Agreement shall survive the termination of the Executive’s employment
with the Employer to the extent provided herein.
25. Waiver. The
waiver of any party hereto of a breach of any provision of this Agreement
by any
other party shall not operate or be construed as a waiver of any subsequent
breach.
26. Amendment. No
change, alteration or modification hereof may be made except in a writing,
signed by each of the parties hereto.
14
27. Construction. The
language used in this Agreement will be deemed to be the language chosen
by
Employer and the Executive to express their mutual intent and no rule of
strict
construction shall be applied against any person. Wherever from the
context it appears appropriate, each term stated in either the singular of
plural shall include the singular and the plural, and the pronouns stated
in
either the masculine, the feminine or the neuter gender shall include the
masculine, feminine or neuter. The headings of the Paragraphs of this
Agreement are for reference purposes only and do not define or limit, and
shall
not be used to interpret or construe the contents of this
Agreement.
28. No
Duplication. Notwithstanding anything herein to the contrary, to
the extent that any compensation or benefits are paid to or received by the
Executive from the Bank, Royal Financial or any other subsidiary of Royal
Financial or the Bank, such compensation or benefits shall be subtracted
from
any amounts simultaneously due hereunder from Royal Financial and/or the
Bank,
as the case may be.
[SIGNATURE
PAGE FOLLOWS]
15
IN
WITNESS
WHEREOF, the parties hereto have executed and delivered this Agreement
as of the
day and year first above written.
|
By:
/s/Xxxxxx X. Xxxx
Title: Chief
Executive Officer and President
|
|
|
ROYAL
SAVINGS BANK
By:
/s/Xxxxxx X. Xxxx
Title: Chief
Executive Officer and President
|
|
|
Address:_______________________________
______________________________________
______________________________________
Telecopy
No.:
___________________________
|
EXECUTIVE
By:
/s/Xxxxxx Xxxxx
Name: Xxxxxx
Xxxxx
|
16
Exhibit A
to Employment Agreement
RELEASE
AND SEVERANCE AGREEMENT
THIS
RELEASE AND SEVERANCE AGREEMENT is made and entered into this ____ day of
_________, _____ by and between Royal Financial, Inc. and its subsidiaries
and
affiliates (including, without limitation, Royal Savings Bank) (collectively,
the “Company”) and Xxxxxx Xxxxx (hereinafter
“EXECUTIVE”).
EXECUTIVE’S
employment with the Company terminated on __________, ______; and EXECUTIVE
has
voluntarily agreed to the terms of this RELEASE AND SEVERANCE AGREEMENT in
exchange for severance benefits under the Employment Agreement (“Employment
Agreement”) to which EXECUTIVE otherwise would not be entitled.
NOW
THEREFORE, in consideration for severance benefits provided under the Employment
Agreement, EXECUTIVE on behalf of EXECUTIVE and EXECUTIVE’S spouse, heirs,
executors, administrators, children, and assigns does hereby fully release
and
discharge the company, its officers, directors, employees, agents, subsidiaries
and divisions, benefit plans and their administrators, fiduciaries and insurers,
successors, and assigns from any and all claims or demands for wages, back
pay,
front pay, attorneys’ fees and other sums of money, insurance, benefits,
contracts, controversies, agreements, promises, damages, costs, actions or
causes of action and liabilities of any kind or character whatsoever, whether
known or unknown, from the beginning of time to the date of these presents,
relating to EXECUTIVE’S employment or termination of employment from the
Company, including but not limited to any claims, actions or causes of action
arising under the statutory, common law or other rules, orders or regulations
of
the United States or any State or political subdivision thereof including
the
Age Discrimination in Employment Act and the Older Workers Benefit Protection
Act.
EXECUTIVE
acknowledges that EXECUTIVE’S obligations pursuant to Paragraphs 11
and 12, of the Employment Agreement relating to the use or disclosure of
confidential information and non-solicitation of customers and employees
shall
continue to apply to EXECUTIVE.
This
Release and Settlement Agreement supersedes any and all other agreements
between
EXECUTIVE and the Company except agreements relating to proprietary or
confidential information belonging to the Company, and any other agreements,
promises or representations relating to severance pay or other terms and
conditions of employment are null and void.
This
release does not affect EXECUTIVE’S right to any benefits to which EXECUTIVE may
be entitled under any employee benefit plan, program or arrangement sponsored
or
provided by the Company, including but not limited to the Employment Agreement
and the plans, programs and arrangements referred to therein.
EXECUTIVE
and the Company acknowledge that it is their mutual intent that the Age
Discrimination in Employment Act waiver contained herein fully comply with
the
Older Workers Benefit Protection Act. Accordingly, EXECUTIVE
acknowledges and agrees that:
A-1
(a) The
severance benefits exceed the nature and scope of that to which EXECUTIVE
would
otherwise have been legally entitled to receive.
(b) Execution
of this Agreement and the Age Discrimination in Employment Act waiver herein
is
EXECUTIVE’S knowing and voluntary act;
(c) EXECUTIVE
has been advised by the Company to consult with EXECUTIVE’S personal attorney
regarding the terms of this Agreement, including the aforementioned
waiver;
(d) EXECUTIVE
has had at least twenty-one (21) calendar days within which to consider
this Agreement;
(e) EXECUTIVE
has the right to revoke this Agreement in full within seven (7) calendar
days of execution and that none of the terms and provisions of this Agreement
shall become effective or be enforceable until such revocation period has
expired;
(f) EXECUTIVE
has read and fully understands the terms of this Agreement; and
(g) Nothing
contained in this Agreement purports to release any of EXECUTIVE’S rights or
claims under the Age Discrimination in Employment Act that may arise after
the
date of execution.
IN
WITNESS WHEREOF, the parties have executed this Agreement on the date indicated
above.
|
for
itself and its Subsidiaries
and Affiliates
By:_________________________________________
Its:_________________________________________
|
EXECUTIVE
_______________________________________
Xxxxxx
Xxxxx
|
A-2
