June 6, 2007
EXHIBIT
10.2
June
6,
2007
Xx.
Xxxxxxx X. Xxxx
0000
Xxxxx Xxxx
Xxxxxxxx,
Xxx Xxxxxx 00000
Dear
Xxxxxxx:
In
connection with the anticipated merger (the “Merger”) by and between The PNC
Financial Services Group, Inc. (the “Parent”) and Yardville National Bancorp
(the “Company”) as contemplated by the Agreement and Plan of Merger, dated even
with the date hereof, by and among the Parent and the Company (the “Merger
Agreement”), the Company, PNC Bank, National Association (“PNC Bank”), and you
hereby enter into this Consulting, Non-Competition and Retention Agreement
(this
“Agreement”).
The
parties hereto agree and acknowledge that Section 9 of this Agreement shall
become immediately effective upon the execution of this Agreement and all other
provisions of this Agreement shall become effective only as of the Effective
Time (as defined in the Merger Agreement). In the event that the
Effective Time does not occur for any reason, this Agreement shall be deemed
null and void ab initio and of no force and effect, and the Employment
Agreement between you, the Company and Yardville National Bank, a subsidiary
of
the Company, dated as of August 20, 2004 (the “Prior Agreement”) shall be
reinstated effective immediately.
1. Consulting
Arrangement. PNC Bank shall engage your services as a consultant
on the terms and conditions set forth in this Agreement. The term of
this arrangement shall be for a period of one year commencing on the date on
which the Effective Time occurs (the “Effective Date”) and ending on the first
anniversary of the Effective Date, or such earlier date as provided in Section
5
below (the “Consulting Period”).
2. Services. You
have agreed to provide consulting services to PNC Bank and its affiliates (as
used herein, “affiliates” includes PNC Bank’s affiliates and subsidiaries)
during the Consulting Period as described herein (the
“Services”). Your Services will include the
following: transition with the Company’s Board of Directors, and
assistance in retaining relationships with those Board members as designated
by
PNC Bank; assistance in maintaining an ongoing satisfactory business and
personal relationship with customers and current and past executives of the
Company; assistance in meeting customers and/or centers of influence to provide
for continuity in the introduction of PNC Bank and its affiliates to the
Hamilton, New Jersey area; advice on the appropriate civic involvement for
PNC
Bank and its affiliates and executives; and other matters as they may
arise. It is acknowledged that the Services will not require a
full-time commitment from you and you shall perform the Services on a part-time
basis, as and when reasonably requested by PNC Bank from time to
time.
3. Independent
Contractor Status. You shall perform the Services as an
independent contractor, and not as an employee, agent or representative of
PNC
Bank or any of its affiliates. Unless authorized in writing by PNC
Bank, you shall not have the power or authority to act on behalf of, or bind
in
any way, PNC Bank or any of its affiliates. Because the Services will
be performed by you as an independent contractor and not as an employee of
PNC
Bank, you understand and agree that you are not eligible by virtue of this
Agreement to participate in any of PNC Bank’s employee benefit plans or
programs. (This Agreement does not, however, circumvent any other
legal or contractual rights that you may have to such participation as a former
employee of the Company.) In the unlikely event that this consulting
arrangement is reclassified as Bank employment by any governmental agency or
court, you further agree that you will not seek to participate in or benefit
from any of PNC Bank’s employee benefit plans or programs as a result of such
reclassification.
4. Fees.
(a) Consulting
Fees. During the Consulting Period, you shall xxxx PNC Bank and
PNC Bank will pay to you a monthly consulting fee of $20,000 (which is a total
of $240,000 for the Consulting Period) (“Consulting Fees”). In
addition to the Consulting Fee, the Company will reimburse you for reasonable
travel and other out-of-pocket expenses incurred by you in carrying out your
duties under this Agreement in accordance with the applicable expense
reimbursement policies of PNC Bank and its affiliates.
(b) Settlement
of Prior Agreement; SERP. On January 2, 2008, subject to your
execution and non-revocation prior to December 20, 2007 of a release
substantially in the form attached hereto as Exhibit A (the “Release”), PNC Bank
will pay you (i) $2,260,000 in full settlement of any and all obligations and
liabilities under the Prior Agreement and in consideration for the restrictive
covenants contained herein and (ii) $4,026,000 in full settlement of any and
all
obligations and liabilities under any non-qualified deferred compensation plans,
programs, or arrangements of PNC Bank, the Company or their respective
affiliates, including without limitation the Company’s Second Amended and
Restated Supplemental Executive Retirement Plan as in effect as of the Effective
Date. For the avoidance of doubt, and notwithstanding anything herein
to the contrary, the payments set forth in this Section 4(b) shall not be taken
into account in computing any benefits under any plan, program or arrangement
of
PNC Bank, the Company or their respective affiliates.
5. Termination
of Consulting Arrangement. The parties hereto expect that this
consulting arrangement will continue for the full term of the Consulting
Period. Either you or PNC Bank may, however, choose to end the
arrangement prior to the end of the Consulting Period.
(a) Termination
by PNC Bank. PNC Bank may provide written notice and
terminate the consulting arrangement in the event that you take any action
or
omission constituting “Cause”, which for purposes of this Agreement shall mean
in the good faith determination of PNC Bank: (i) your gross negligence or
willful misconduct with respect to your performance of the Services;
(ii) your commission of fraud against PNC Bank or its affiliates or its
customers, clients or employees, (iii) your commission of any theft or
misappropriation of the assets or business opportunities of PNC Bank or its
affiliates, (iv) any breach of your fiduciary
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duty
owed
to PNC Bank or its affiliates, (v) your commission of any felony or act of
moral
turpitude, in either case, which could reasonably be expected to have a material
adverse effect on PNC Bank or its affiliates (vi) a material violation by you
the Parent’s Code of Business Conduct and Ethics or its Employee Conduct
Policies, unless not reasonably applicable to you as an independent contractor;
(vii) a material breach of your obligations contained in this Agreement,
including your intentional failure or refusal to perform the Services; or
(viii) the entry of any order against you by any government body having
regulatory authority with respect to the business of PNC Bank or its affiliates
for a violation by you of any rule or regulation governing the business of
PNC
Bank or its affiliates; provided, however, that prior to being given
written notice of the termination of your engagement for Cause under (vi) or
(vii) hereof, if curable, you shall be given thirty days’ advance notice that
PNC Bank or its affiliates believe you are in violation of such provision(s),
during which time you may seek to cure your acts and/or omissions and to the
extent that such acts or omissions are cured within such period, such acts
or
omissions shall not constitute Cause. If the Consulting Period is
terminated by PNC Bank for Cause, PNC Bank’s obligation to pay all consulting
fees hereunder will cease immediately after the cure period, if any, has ended
without an effective cure. In the event that the Consulting Period is
terminated by PNC Bank other than for Cause, PNC Bank will be obligated to
pay
you the remainder of the unpaid Consulting Fees for the full Consulting Period
(assuming no such termination had occurred) within thirty days after such
termination.
(b) Termination
by Consultant. You may provide notice and terminate the
Consulting Period for “Good Reason” in the event that PNC Bank fails to pay any
of the amounts set forth in this Agreement when due; provided, however,
that PNC may cure within ten (10) business days following the receipt of notice
from you outlining such breach. If you terminate the Consulting
Period for Good Reason, PNC Bank will be obligated to pay you the remainder
of
the unpaid Consulting Fees for the full Consulting Period (assuming no such
termination had occurred) within thirty days after such
termination. In the event that you terminate the Consulting Period
without Good Reason, PNC Bank’s obligation to pay all consulting fees hereunder
will immediately cease.
(c) Automatic
Termination of the Agreement. The engagement shall terminate
automatically upon your death or Disability. “Disability” occurs if
you are incapable of performing the Services for a period of six months or
more
during the Consulting Period. Termination of the engagement by reason
of Disability shall be communicated to you by written notice, and shall be
effective on the 30th day after receipt of such notice by you (the “Disability
Effective Date”), unless you return to full-time performance of your duties
before the Disability Effective Date. If termination of the
consulting arrangement occurs for either of these reasons, PNC Bank’s obligation
to pay any Consulting Fees will cease with the beginning of the first full
calendar month after your death or as of the Disability Effective Date,
whichever is applicable.
(d) Mutual
Agreement. You and PNC Bank may mutually agree in writing at any
time to terminate the engagement, and the terms of that
disengagement.
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6.
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Restrictive
Covenants and Confidentiality.
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(a) Conflicts
of Interest. You and PNC Bank have entered into this Agreement
in significant part because of your knowledge, experience and expertise
pertaining to
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the
Company and its affiliates. During your employment by the Company you
have had direct and indirect access to a significant amount of confidential
and
proprietary information of the Company and its customers that is being acquired
by the Parent and its affiliates. In addition, during the Consulting
Period, in the performance of the Services you will have access to and will
accumulate significant knowledge of the confidential and proprietary information
of PNC Bank and its affiliates and their customers. You agree that it
is reasonable and necessary to protect the interest of PNC Bank and its
affiliates in such confidential and proprietary information, and that to do
so
you promise that you will not, during the Consulting Period and for one year
thereafter (the “Restricted Period”), engage in any employment, enterprise or
activity that would present a real or perceived conflict of interest with your
obligations to advise PNC Bank and its affiliates, assist them in growing their
presence and business in the Hamilton, New Jersey metropolitan area and/or
protecting, preserving and avoiding even the inadvertent use or disclosure,
or
the perception of your use or disclosure, of PNC Bank’s, the Company’s or their
respective affiliates’ confidential and/or proprietary information.
(b) Nonsolicitation
of Employees/Clients. You agree that during the Restricted
Period you shall not, directly or indirectly, either for your own benefit or
purpose or for the benefit or purpose of any person or entity other than PNC
Bank or its affiliates, solicit, call on, do business with, or actively
interfere with any of their relationships with, or attempt to divert or entice
away, any person or entity that you should reasonably know (i) is or was a
customer for which PNC Bank or its affiliates provided services during or as
of
the end of the Consulting Period, or (ii) is or was, as of the end of the
Consulting Period, considering retention of PNC Bank and/or any of its
affiliates to provide services.
(c) No-hire. You
agree that during the Restricted Period you shall not, directly or indirectly,
either for your own benefit or purpose or for the benefit or purpose of any
person or entity other than PNC Bank or its affiliates, employ or offer to
employ, call on, or actively interfere with PNC Bank’s or its affiliates’
relationship with, or attempt to divert or entice away, any of their employees,
nor shall you assist any other person or entity in such activities; provided,
however, that the covenant contained herein shall not prohibit you from having
an ownership interest in a person or entity at which your son, Xxxxxxx X. Xxxx
is a director, officer or employee.
(d) Non-competition. You
agree that during the Consulting Period and the one-year period thereafter,
you
shall not serve as an officer, director or employee of any bank holding company,
bank, savings association, savings and loan holding company, or mortgage company
which offers products or services competing with those offered by the Parent
or
PNC Bank from any office within fifty (50) miles from the main office or any
branch of PNC Bank.
(e) Confidentiality. You
shall hold for the benefit of PNC Bank and its affiliates and shall not disclose
to others, copy, use, transmit, reproduce, summarize, quote or make commercial,
directly or indirectly, any secret or confidential information, knowledge or
data relating to PNC Bank and its affiliates and their businesses (including
without limitation information about their respective clients and customers
and
their proprietary knowledge and trade secrets, software, technology, research,
secret data, customer lists, investor lists, business methods, business plans,
training materials, operating procedures or programs, pricing strategies,
employee lists and other business information) that you have obtained during
your engagement
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by
PNC
Bank, provided, however, that the foregoing shall not apply to
information that is generally known to the public other than as a result of
the
breach of this Agreement by you or one of your representatives (“Confidential
Information”). You acknowledge that such Confidential Information is
specialized, unique in nature and of great value to PNC Bank and its affiliates
and that such information gives PNC Bank and its affiliates a competitive
advantage. Upon termination of your engagement, you shall surrender
immediately to PNC Bank, except as specifically provided otherwise herein,
all
Confidential Information and all other property of PNC Bank and its affiliates
in your possession and all property made available to you in connection with
your engagement by PNC Bank, including, without limitation, any and all other
records, manuals, customer and client lists, notebooks, files, papers,
computers, computer programs, computer discs, lists, data, cellular phones,
two-way pagers, palm-held electronic devices, electronically stored information
and all other documents (and all copies thereof) held or made by
you. Notwithstanding the foregoing provisions, if you are required to
disclose any such Confidential Information pursuant to applicable law or a
subpoena or court order, you shall promptly notify PNC Bank in writing of any
such requirement so that PNC Bank and/or its affiliate(s) may seek an
appropriate protective order or other appropriate remedy or waive compliance
with the provisions hereof. You shall reasonably cooperate with PNC
Bank to obtain such protective order or other remedy. If such order
or other remedy is not obtained prior to the time that you are required to
make
the disclosure, or PNC Bank waives compliance with the provisions hereof, you
shall disclose only that portion of the confidential or proprietary information
that you are advised by counsel that you are legally required to so
disclose.
7. Enforcement
Provisions. You and PNC Bank understand and agree to
the following provisions regarding enforcement of this Agreement.
(a). Governing
Law and Jurisdiction. This Agreement is governed by
and is to be construed under the laws of the Commonwealth of Pennsylvania,
without regard to conflict of laws rules. Any dispute or claim
arising out of or relating to this Agreement or claim of breach hereof shall
be
brought exclusively in the Federal court in the State of New
Jersey. By execution of the Agreement, you, the Company and PNC Bank,
and their respective affiliates, consent to the exclusive jurisdiction of such
court, and waive any right to challenge jurisdiction or venue in such court
with
regard to any suit, action, or proceeding under or in connection with the
Agreement. Each party to this Agreement also hereby waives any right
to trial by jury in connection with any suit, action or proceeding under or
in
connection with this Agreement.
(b). Equitable
Remedies. A breach of Section 6 of this Agreement
will cause PNC Bank and/or its affiliates irreparable harm, and PNC Bank and
its
affiliates will therefore be entitled to (in addition to any monetary damages
available to them) the issuance of immediate, as well as permanent, injunctive
relief restraining you, and each and every person and entity acting in concert
or participating with you, from initiation and/or continuation of such breach
and such other remedies provided herein or any other remedies provided at law
or
in equity.
(c). Tolling
Period. If it becomes necessary or desirable for PNC Bank and/or
its affiliates to seek compliance with any provision of Section 6 of this
Agreement by legal proceedings, the period during which you will be
required to comply with each such provision shall be tolled during any period
of
violation of any of the covenants in Section 6 hereof and
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during
any other period required for litigation during which PNC Bank seeks to enforce
such covenants against you if it is ultimately determined that you were in
breach of such covenants.
(d). No
Waiver. Failure of you or PNC Bank or its affiliates to demand
strict compliance with any of the terms, covenants or conditions of this
Agreement shall not be deemed a waiver of such term, covenant or condition,
nor
shall any waiver or relinquishment of any such term, covenant or condition
on
any occasion or on multiple occasions be deemed a waiver or relinquishment
of
such term, covenant or condition.
(e). Severability. The
restrictions and obligations imposed by Section 6 of this Agreement are separate
and severable, and it is the intent of you and PNC Bank that if any restriction
or obligation imposed by any of the provisions of Section 6 of this Agreement
is
deemed by a court of competent jurisdiction to be void for any reason
whatsoever, the remaining provisions, restrictions and obligations of Section
6
of this Agreement shall remain valid and binding upon you. You and
PNC Bank further agree that each provision of this Agreement shall be severable
from every other provision of this Agreement for the purpose of determining
the
legal enforceability of any specific provision. In the event that any
provision of this Agreement is deemed invalid or unenforceable under applicable
law, all other provisions of this Agreement shall remain in full force and
effect.
(f). Reform. In
the event any part of Section 6 of this Agreement is determined by a court
of
competent jurisdiction to be unenforceable, it is the intent of you and PNC
Bank
that said court reduce and reform the provisions thereof so as to apply the
greatest limitations considered enforceable by the court.
(g). Waiver. You
and PNC Bank hereby waive any right to trial by jury with regard to any suit,
action or proceeding under or in connection with this Agreement.
8. Application
of Policies. Except as specifically modified by this Agreement,
during the Consulting Period, the general policies and practices of PNC Bank
and
its affiliates (as such policies may exist from time to time) that are generally
applicable to consultants of PNC Bank, including but not limited to the Parent’s
Code of Business Conduct and Ethics and its Employee Conduct Policies, will
apply to you with the same force and effect as to any other consultant of PNC
Bank.
9. Termination
of the Prior Agreement; Agreement to Remain Employed with the Company Through
the Effective Time. Except as otherwise set forth herein, you
hereby agree that, in consideration for entering into this Agreement, effective
as of the Effective Time the Prior Agreement shall be null and void, and no
person or entity shall be obligated to pay to you or any person any amounts
in
respect of the Prior Agreement. Further, in consideration of the
benefits conferred upon you and the Company pursuant to this Agreement, you
hereby agree not to terminate your employment with the Company or any of its
subsidiaries prior to the Effective Time, and, prior to the Effective Time,
the
Company agrees not to terminate your employment with the Company or its
subsidiaries without the prior written consent of PNC Bank.
10. Taxes. Except
as otherwise specifically provided in this Section 10, as a consultant and
independent contractor of PNC Bank, you will be responsible for, and will
duly
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and
timely comply with all applicable laws relating to, the collection, payment,
reporting and remittance of any and all Federal, state or local taxes, charges
or fees (“Taxes”) resulting from the receipt of amounts described in this
Agreement. Except as set forth herein, neither PNC Bank, the Company
nor any of their respective affiliates shall be liable, for any Taxes resulting
from the receipt of amounts described in this Agreement or your failure to
comply with applicable laws. You, the Company and PNC Bank agree that
none of the payments and benefits payable or provided to you or for your benefit
in connection with the Merger are intended to constitute an “excess parachute
payment” within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the “Code”). However, notwithstanding anything to
the contrary contained in this Agreement or the Prior Agreement, in the event
that the aggregate payments or benefits to be made or afforded to you under
this
Agreement or otherwise (the “Payments”) do constitute an “excess parachute
payment” under Section 280G of the Code, you shall be entitled to an amount
equal to the Gross-Up Payment (as defined in Section 15 of your Prior Agreement)
in accordance with and subject to the terms and conditions set forth in Section
15 of your Prior Agreement; provided, however, if the aggregate
value of the Payments are less than or equal to the sum of (i) $75,000 plus
(ii)
three (3) times your “base amount,” as determined in accordance with Section
280G of the Code, in lieu of payment of the Gross-Up Payment, the Payments
will
instead be reduced to an amount such that the value of such Payments shall
be
equal to three (3) times your “base amount,” as determined in accordance with
Section 280G of the Code, less $5,000.00. You hereby agree to report
any amounts paid or benefits provided under this Agreement for purposes of
Federal, state and local income, engagement and excise taxes consistent with
the
good faith manner in which PNC Bank or its affiliates reports any such amounts
or benefits for purposes of Federal, state and local income, engagement and
excise taxes and that you shall cooperate with PNC Bank and/or its affiliates
in
good faith in connection with any valuation of the restrictions and obligations
under this Agreement.
11. Compliance
with Internal Revenue Code Section 409A. If PNC Bank determines
that any compensation provided by this Agreement may result in the application
of Section 409A of the Code, it may, without your consent, modify this Agreement
to the extent and in the manner it deems necessary or advisable in order to
exclude such compensation from the definition of “deferred compensation” within
the meaning of such Section 409A or in order to comply with the provisions
of
Section 409A, other applicable provision(s) of the Code and/or any rules,
regulations or other regulatory guidance issued under such statutory provisions;
provided, however, that in no event shall any modification
pursuant to this Section 11 reduce the economic benefits payable to you without
your prior written consent.
12. Additional
Obligations of Consultant. You agree to the
following:
(a) You
will maintain all insurance coverages required by law, as well as all coverages
reasonably necessary to protect PNC Bank and its affiliates against all claims
which may be incurred by or imposed on PNC Bank or its affiliates in connection
with or growing out of the Services. Such coverages shall include,
but are not limited to, comprehensive general liability insurance of at least
$1,000,000.00 per occurrence.
(b) You
shall immediately notify PNC Bank if you have committed, been convicted of,
pled
guilty to or entered into a pre-trial diversionary program regarding
any
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criminal
offense involving dishonesty, breach of trust or money laundering, as those
terms are defined by the Statement of Policy of the Federal Deposit Insurance
Corporation.
(c) The
Equal Employment Opportunity Clause set forth in Section 202 of Executive Order
11246, as amended, and the Affirmative Action clauses set forth in Title 41
CFR
60-741.4 and Title 41 CFR 60-250.4 are hereby incorporated by reference in
and
made a part of this Agreement.
13. Survival
of Certain Provisions of Prior Agreement. Notwithstanding
anything herein to the contrary, Section 13 (Indemnification and Liability
Insurance) and, with respect to Section 4(b) of this Agreement only, Section
14
(Reimbursement of your Expenses to Enforce this Agreement) of your Prior
Agreement shall remain in full force and effect in accordance with its
terms.
14. Successors. This
Agreement is personal to you and without the prior written consent of PNC Bank
shall not be assignable by you otherwise than by will or the laws of descent
and
distribution. This Agreement shall inure to the benefit of and be
enforceable by your legal representatives. This Agreement shall inure
to the benefit of and be binding upon the Company (prior to the Effective Date),
PNC Bank and their respective successors and assigns.
15. Entire
and Final Agreement. This Agreement shall supersede any and all
prior oral or written representations, understandings and agreements of the
parties with respect to the matters addressed herein (including, but not limited
to, all correspondence, memoranda and term sheets and the Prior Agreement),
and
it contains the entire agreement of the parties with respect to those
matters. No agreements or representations, oral or otherwise, express
or implied, with respect to the subject matter hereof have been made by either
party that are not set forth expressly in this Agreement. Once signed
by the parties hereto, no provision of this Agreement may be modified or amended
unless agreed to in a writing, signed by you and a duly authorized officer
of
the Company (prior to the Effective Date, it being understood that after the
Effective Time, no signature from the Company shall be required) and PNC
Bank.
16. Assignment. Neither
this Agreement nor any of the rights, obligations or interests arising hereunder
may be assigned by you. Neither this Agreement nor any of the rights,
obligations or interests arising hereunder may be assigned by the Company,
or
PNC Bank without your prior written consent, to a person or entity other than
an
affiliate or parent entity of the Company or PNC Bank, or their successors
or
assigns; provided, however, that in the event of the merger,
consolidation, transfer or sale of all or substantially all of the assets of
the
Company or PNC Bank with or to any other individual or entity, this Agreement
shall, subject to the provisions hereof, be binding upon and inure to the
benefit of such successor, and such successor shall discharge and perform all
the promises, covenants, duties, and obligations of the Company or PNC Bank
hereunder.
17. Section
Headings. The section headings contained in this Agreement are
inserted for purposes of convenience only, and shall not affect the meaning
or
interpretation of this Agreement.
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18. Notices. All
notices required by this Agreement shall be sent in writing and delivered by
one
party to the other by overnight express mail to the following persons and
addresses:
If
to the
Company:
0000
Xxxxx Xxxx
Xxxxxxxx,
Xxx Xxxxxx 00000
Attention: General
Counsel
With
a
copy to the Parent.
If
to PNC
Bank:
PNC
Bank,
National Association
One
PNC
Plaza
000
Xxxxx
Xxxxxx
Xxxxxxxxxx,
Xxxxxxxxxxxx 00000
Attention: General
Counsel
Telecopy
No.: (000) 000-0000
If
to
you:
At
the
most recent address on file with the Company (if prior to the Effective Time)
or
with PNC Bank (if after the Effective Time)
With
a
copy to:
Xxxxx
X.
Xxxxxxxx, Esq.
Xxxxxxx
Xxxx & Xxxxxxxxx LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxxx
Telecopy
No: (000) 000-0000
19. Execution
in Counterparts. This Agreement may be executed by the parties
hereto in counterparts, each of which shall be considered an original for all
purposes.
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If
the
foregoing is satisfactory, please so indicate by signing and returning to the
Company and PNC Bank the enclosed copy of this letter, whereupon this will
constitute our agreement on the subject.
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By:
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/s/ F. Xxxxx Xxxxx | |
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Name:
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F. Xxxxx Xxxxx | |
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Date:
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June 6, 2007 | |
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PNC
Bank, National Association
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By:
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/s/ Xxxxx X. Xxxxxxxx | |
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Name:
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Xxxxx X. Xxxxxxxx | |
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Date:
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June 6, 2007 | |
ACCEPTED
AND AGREED TO:
| By: | /s/ Xxxxxxx X. Xxxx |
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Xxxxxxx
X. Xxxx
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Date:
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June 6, 2007 |
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EXHIBIT
A
Waiver
and Release.
In
exchange for the payments and benefits offered by PNC, you hereby:
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(a)
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Fully
release and forever discharge PNC, and each of its officers, directors,
employees and shareholders, from all liability upon claims of any
nature
whatsoever, including claims of negligence, breach of contract, violation
of federal, state or local laws which prohibit discrimination on
the basis
of race, color, national origin, religion, sex, age, veteran status,
disability or retaliation, the Age Discrimination in Employment Act
of
1967, as amended, and the laws enforced by any other federal, state
or local agencies, including claims under the Pennsylvania Human
Relations
Act, as amended, and including further claims of any other nature
whatsoever based upon any act or event which occurred on or before
the
date on which this Waiver and Release is signed and becomes effective,
whether known or unknown, which you now have or could claim to
have.
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(b)
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Agree
that you will not file, or permit to be filed in your name or on
your
behalf, any lawsuit in court against any of the persons or entities
released in this Waiver and Release (other than that not released
pursuant
to paragraph (d) below or to challenge this Waiver and Release under
the
Age Discrimination in Employment Act), based upon any act or event
which
occurred on or before the effective date of this Waiver and
Release.
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(c)
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Agree
that, while this Waiver and Release does not prevent you from filing
a
Charge with the Equal Employment Opportunity Commission (“EEOC”), if any
charge, complaint, lawsuit or administrative claim is filed in your
name
or on your behalf with the EEOC or any other administrative agency
or
organization, or in any other forum, against any of the persons or
entities released in this paragraph, based upon any act or event
which
occurred on or before the date you signed this Waiver and Release,
you
will not seek or accept any personal relief, including but not limited
to
any award of monetary damages or reinstatement to your employment
with
PNC. (Provided, however, that this provision shall not apply to
a claim for damages under the Age Discrimination in Employment
Act. If successful on such claim, however, any monetary damages
obtained by you would be offset by the monies paid under the Consulting
Agreement (as defined below).)
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(d)
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Notwithstanding
any other provision of this Waiver and Release to the contrary, the
release and other provisions herein shall not operate to release,
and
shall not apply to disputes relating to your or your beneficiary’s rights
to receive all benefits and payments provided for or otherwise afforded
under the Consulting Agreement between you, on the one hand, and
Yardville
National Bancorp and PNC Bank, National Association, on the other
hand,
dated June 6, 2007 (the “Consulting Agreement”), to the extent you are
entitled to such benefits and
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-11-
payments,
or through any benefit plan to which you are entitled pursuant to the Consulting
Agreement or at any time before or after the termination of your consulting
relationship.
Intending
to be legally bound hereby:
AGREED:
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For
Myself, and for My Heirs, Personal
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(date
of signing)
|
|
|
Representative
and Assigns
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||
FOR
PNC
|
BY:
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|||
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(Human
Resources Signature)
|
(date
of signing)
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NOTICE
You
will have at least 45 calendar days
to consider this Waiver and Release and whether to sign it. Even if
you decide to accept this offer beforehand, you may not sign this Waiver and
Release prior to ______________________, 200__. If you sign the
Waiver and Release ahead of time, it will invalidate the Waiver and
Release.
One
(1) properly dated and fully
executed original Waiver and Release must be received by the Human Resources
representative listed below within four (4) calendar days from
________________________, 200__, or this offer is automatically
void. If you do not sign or thereafter revoke your signature under
this Waiver and Release, you agree to reimburse PNC for all payments provided
to
you based on Section 4(b) of the Consulting Agreement, unless specifically
excluded.
This
Waiver and Release may be revoked
by you at any time within seven (7) calendar days after you have signed it,
in
which event PNC will consider that you are not eligible for the benefits set
forth herein. To revoke this Waiver and Release, written notice of
revocation must be received by _________________________________________ no
later than seven (7) days after the date you signed it.
If
you have any questions or need to
discuss this Waiver and Release, please call __________________ at (______)
______________.
