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Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") made as of the 1st day of November, 2000,
between MAIN STREET BANCORP, INC., a Pennsylvania business corporation ("Main"),
MAIN STREET BANK, a Pennsylvania banking corporation (the "Bank"), and XXXXXX X.
XXXX, an individual (the "Executive").
WITNESSETH:
WHEREAS, Main, the Bank and the Executive desire to enter into an
Agreement regarding, among other things, the employment of the Executive by Main
and the Bank, all as hereinafter set forth.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Employment. Main and the Bank each hereby employ the Executive, and
the Executive hereby accepts employment with Main and the Bank, on the terms and
conditions set forth in this Agreement.
2. Duties of Employee. The Executive will perform and discharge well
and faithfully such duties as an executive officer of Main and the Bank as may
be assigned to him from time to time by the Board of Directors of Main or the
Bank, or the Executive committee of such Boards. The Executive will be employed
as Executive Vice President/Chief of Operations of Main and the Bank, and will
hold such other titles as may be given to him from time to time by the Board of
Directors of Main and the Bank, or the Executive Committee of such Boards. The
Executive will devote his full time, attention and energies to the business of
Main and the Bank and will not, during the Employment Period (as defined in
Section 3), be employed or involved in any other business activity, whether or
not such activity is pursued for gain, profit or other pecuniary advantage;
provided, however, that this section will not be construed as preventing the
Executive from (a) passively investing his personal assets, (b) acting as a
member of the Board of Directors of Main, the Bank, or with pre-approval of the
Chairman of Main, any other corporation not in competition with either, or (c)
being involved in any community, civic or similar activity serving as a member
of a Board of Directors, Trustee or otherwise.
3. Term of Employment. The Executive's employment under this Agreement
will be for a period (the "Employment Period") commencing upon the date of this
Agreement and ending at the end of the term of this Agreement pursuant to
Section 17, unless the Executive's employment is sooner terminated in accordance
with Section 5 or one of the following provisions:
(a) Termination for Cause. The Executive's employment under
this Agreement may be terminated at any time during the Employment
Period for "Cause" (as herein defined), by action of the Board of
Directors of Main or the Bank, or the Executive Committee of such
Boards, upon giving written notice of such termination to the
Executive. As used in this Agreement, "Cause" means any of the
following events:
(i) the Executive is convicted of or enters a plea of
guilty or nolo contendere to a felony, a crime of falsehood,
or a crime involving
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fraud or moral turpitude, or the actual incarceration of the
Executive for a period of five (5) consecutive days;
(ii) the Executive, in the reasonable opinion of the
Board of Directors of Main or the Bank, willfully fails or
continuously neglects, to perform the responsibilities and
duties assigned to him following receipt of two (2) written
warnings at least thirty (30) days apart from the Board of
Directors of Main or the Bank (excluding however, failure to
perform due to Executive's incapacity because of physical or
mental illness);
(iii) the Executive has, in the reasonable opinion of
the Board of Directors of Main or the Bank, engaged in gross
misconduct or gross negligence in the course of his employment
with Main;
(iv) a government regulatory agency recommends or
orders in writing that the Bank terminate the employment of
the Executive with the Bank or relieve him of his duties as
such relate to the Bank; or
(v) the Executive has, in the reasonable opinion of
the Board of Directors, committed an intentional act of fraud,
embezzlement or theft in connection with the Executive's
duties in the course of his employment;
(vi) the Executive has, in the reasonable opinion of
the Board of Directors, caused intentional damage to property
of Main or has intentionally and wrongfully disclosed
Confidential Information.
If the Executive's employment is terminated under the provisions of
this subsection, then all rights of the Executive under Section 4 will
cease as of the effective date of such termination. For purposes of
this Section 3(a), any notice delivered by the Chief Executive Officer
of Main or the Bank shall be deemed to be delivered by the Board of
Directors of Main or the Bank.
(b) Termination Without Cause. The Executive's employment
under this Agreement may be terminated at any time during the
Employment Period without "Cause" (as defined in Section 3 (a)), by
action of the Board of Directors of Main or the Bank, upon giving
notice of such termination of the Executive at least thirty (30) days
prior to the date upon which such termination is to take effect. If the
Executive's employment is terminated under the provisions of this
subsection, then the Executive will be entitled to receive the
compensation set forth in Section 6.
(c) Voluntary Termination, Retirement or Death. If the
Executive voluntarily terminates employment without Good Reason (as
defined in Section 5), retires or dies, the Executive's employment
under this Agreement will be deemed terminated as of the date of the
Executive's voluntary termination, retirement or death, and all rights
of the Executive under Section 4 will cease as of the date of such
termination and any benefits payable to the Executive will be
determined in accordance with the pension, welfare, fringe benefit,
expense reimbursement, salary deferral and insurance programs of Main
and of the Bank then in effect.
(d) Disability. If the Executive is incapacitated by accident,
sickness, or otherwise so as to render the Executive mentally or
physically incapable of performing the essential duties required of the
Executive under Section 2, notwithstanding reasonable accommodation,
for a continuous period of six months, then, upon the expiration of
such period or at any time thereafter, by action of the Board of
Directors of Main or the Bank, the Executive's employment under
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this Agreement may be terminated immediately upon giving the Executive
notice to that effect. If the Executive's employment is terminated
under the provisions of this subsection 3(d), then all rights of the
Executive under Section 4 will cease as of the last business day of the
week in which such termination occurs, and the Executive will
thereafter be entitled to the benefits to which he is entitled under
any disability plan of Main or the Bank, if any, in which he is then a
participant (including the minimum benefit described in Section 4 (d)
(ii)).
4. Employment Period Compensation and Related Matters.
(a) Salary. For services performed by the Executive under this
Agreement, Main and the Bank will pay the Executive a salary, in the
aggregate, during the Employment Period, at the annualized rate of
$125,000, payable at the same times as salaries are payable to other
executive employees of Main or of the Bank. Main and/or the Bank may,
from time to time, increase (but not decrease) the Executive's salary,
and any and all such increases will be deemed to constitute amendments
to this subsection to reflect the increased amounts, effective as of
the dates established for such increases by the Board of Directors of
Main or of the Bank in the resolutions authorizing such increases.
(b) Bonus. For services performed by the Executive under this
Agreement, Main will pay the Executive a bonus, annually during the
Employment Period, in such amounts (if any) and at such times as is
provided in such incentive plan(s) as may be approved by the Board of
Directors of Main and in effect from time to time. In addition, Main
may, from time to time, pay such other bonus or bonuses to the
Executive as Main, in its sole discretion, deems appropriate. The
payment of any such bonuses will not reduce or otherwise affect any
other obligation of Main and/or the Bank to the Executive provided for
in this Agreement.
(c) Pension and Welfare Benefits. Main will provide the
Executive, during the Employment Period, with pension and welfare
benefits (within the meaning of Section 3 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) in the aggregate not
less favorable than those received by other employees of Main.
(d) Fringe Benefits.
(i) In General. Except as otherwise provided in this
subsection, Main will provide the Executive, during the
Employment Period, with such fringe benefits as may be
provided generally from time to time for other executives
similarly situated in status with the Executive.
(ii) Vacation. The Executive will be entitled to not
less than four weeks of vacation per calendar year, plus one
additional day for each five years of service with Main and
any predecessor of Main. The right to carry over unused
vacation days will be subject to the executive personnel
policies of Main from time to time in effect.
(iii) Stock Options. The Executive will be
entitled to such stock option grants as may be granted from
time to time by the Board of Directors of Main and/or the
Compensation Committee of such Board and as are consistent
with the Executive's responsibilities and performance.
(iv) Automobile. Executive shall be provided an
automobile allowance reasonably consistent with the
Executive's position and in accordance with Main's then in
effect automobile policy for executive officers.
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(e) Expense Reimbursement. The Executive will be entitled to
reimbursement of all reasonable business expenses incurred by him in
the discharge of his duties hereunder, or otherwise in furtherance of
the business of Main and the Bank, provided he renders an accounting of
such expenses in such manner as may be required from time to time for
employees generally.
(f) Salary Deferral. The Executive may request that the
payment of any portion of his base salary and/or bonus for any calendar
year be deferred. Such request must be made in writing to Main and the
Bank before the beginning of such calendar year and must include the
period of deferral requested by the Executive (the "Deferral Period").
If the Board of Directors of Main and of the Bank approve such request,
the Executive will be entitled to receive, at the end of the Deferral
Period, the deferred portion of his base salary and/or bonus plus
interest at a compounded rate of 8% per annum. Any salary and/or bonus
which is deferred as described herein will be credited to an account on
the books of Main and of the Bank established in the name of the
Executive. However, this account will not be funded, and neither Main
nor the Bank will be deemed to be a trustee for the Executive with
respect to any deferred amount. The liabilities of Main and the Bank to
the Executive hereunder are those of a debtor pursuant to such
contractual obligations as are created by this Agreement and
Executive's status with respect to his deferred compensation shall be
that of a general unsecured creditor of Main. No liabilities of Main
and the Bank which arise under this subsection will be deemed to be
secured by any pledge or other encumbrance on any property of Main or
of the Bank. Main and the Bank will not be required to segregate any
funds representing such deferred amounts, and nothing herein will be
construed as providing for such segregation.
5. Resignation of the Executive for Good Reason.
(a) Events Giving Right to Terminate for Good Reason. The
Executive may resign for Good Reason (as herein defined) at any time
during the Employment Period, as hereinafter set forth. As used in this
Agreement, the term "Good Reason" means any of the following:
(i) any reassignment of the Executive to a principal
office which is more than 50 miles from 000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxxxxxxx;
(ii) a reduction in Executive's title coincident with
a reduction of the authority, duties and responsibilities
assigned to Executive by Main;
(iii) any reduction in the Executive's annual base
salary as in effect on the date hereof or as the same may be
increased from time to time;
(iv) Any failure by Main and/or the Bank to provide
the Executive with benefits at least as favorable as those
enjoyed by the Executive under any of the pension or welfare
plans (as such terms are defined in ERISA Section 3) of Main
in which the Executive is participating on the date of this
Agreement, or the taking of any action that would materially
reduce any of such benefits, unless the change is part of a
change applicable in each case to employees generally; or
(v) any material breach of this Agreement by Main or
the Bank, coupled with the failure to cure the same within 30
days after receipt of a written notice of such breach from the
Executive.
(b) Notice of Termination. At the option of the Executive,
exercisable by the Executive within 90 days after the occurrence of the
event constituting Good Reason, the Executive may resign from
employment under this Agreement by a
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notice in writing (the "Notice of Termination") delivered to Main and
the Bank and the provisions of Section 6 will thereupon apply.
(c) Special Right of Termination. Notwithstanding anything
herein to the contrary, but subject to the provisions of Section 3(a),
from the occurrence of the Change in Control event until the end of the
one-year period following the consummation of the Change in Control (as
defined below), the Executive may terminate his employment for any or
no reason by delivering a Notice of Termination, to Main, specifying
that the Notice is being given pursuant to this Section 5(c); and such
termination will be deemed for all purposes to constitute a resignation
for Good Reason. In such event, the Executive will be entitled to the
payments and benefits described in Section 6.
(d) Change in Control Defined. For purposes of this Agreement,
the term "Change in Control" means any of the following:
(i) any "person" (as such term is used in Sections
13(d) and 14(d) (2) of the Securities and Exchange Act of 1934
(the "Exchange Act")), other than Main, a subsidiary of Main,
an employee benefit plan of Main or a subsidiary of Main
(including a related trust), becomes the beneficial owner (as
determined pursuant to Rule 13d-3 under the Exchange Act),
directly or indirectly of securities of Main representing more
than 20% of the combined voting power of Main's then
outstanding securities;
(ii) the occurrence of, or execution of an agreement
providing for, a sale of all or substantially all of the
assets of Main or the Bank to an entity which is not a direct
or indirect subsidiary of Main;
(iii) the occurrence of, or execution of an agreement
providing for, a reorganization, merger, consolidation or
similar transaction involving Main, unless (A) the
shareholders of Main immediately prior to the consummation of
any such transaction will initially own securities
representing a majority of the voting power of the surviving
or resulting corporation, and (B) the directors of Main
immediately prior to the consummation of such transaction will
initially represent a majority of the directors of the
surviving or resulting corporation; or
(iv) any other event which is at any time irrevocably
designated as a "Change in Control" for purposes of this
Agreement by resolution adopted by a majority of the directors
of Main.
(e) Special Right of Payment. Within thirty (30) days
following the occurrence of an event described in Section 5(d) (i) of this
Agreement, Main or the Bank shall pay to Executive a lump sum amount equal to
the amount set forth in Section 6 (b) (i) of this Agreement. This payment shall
be separate and apart from any payments otherwise due Executive under this
Agreement.
6. Rights in Event of Certain Termination of Employment. In the event
that during the term of this Agreement as established pursuant to Section 17 the
Executive resigns from employment for Good Reason, by delivery of a Notice of
Termination or other permitted notice to Main and the Bank, or the Executive's
employment is terminated by Main without Cause, Executive will be entitled to
receive the amounts and benefits set forth in this section.
(a) Basic Payments (prior to the occurrence of a Change in
Control). In the event of a termination pursuant to Section 3 (b) prior
to the occurrence of a Change in Control, or a termination pursuant to
Section 5 (a) that is not also a termination pursuant to Section 5(c),
Main shall be obligated to continue to pay the Executive his base
salary in effect as of his termination for the greater of (i) the
balance of the term of the Agreement, or (ii) twelve (12)
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months. Such amounts will be paid to Executive in accordance with
Main's normal payroll schedule.
(b) Basic Payments (following the occurrence of a Change in
Control). In the event of a termination pursuant to Section 3 (b) at
the time of or following the occurrence of a Change in Control, or a
termination pursuant to Section 5 (c), the Executive will be paid an
amount equal to two times the sum of (i) the highest annualized base
salary paid to him during the year of termination or the immediately
preceding two calendar years, and (ii) the highest bonus paid to him
with respect to one of the three calendar years immediately preceding
the year of termination. The Executive will, within 30 days after his
termination of employment, be paid a lump sum equal to the present
value of the amounts otherwise payable under this subsection. For
purposes of the preceding sentence, present value will be determined by
using the short-term applicable federal rate under Section 1274 of the
Internal Revenue Code of 1986, as amended (the "Code"), in effect on
the date of termination of employment. For purposes of this subsection,
to the extent necessary, base salary and bonuses with any predecessor
of Main or an affiliate thereof shall be taken into account.
(c) Supplemental Payment in Lieu of Certain Benefits. In the
event of a termination pursuant to Section 3 (b) at the time of or
following the occurrence of a Change in Control or a termination
pursuant to Section 5 (c), in lieu of continued pension, welfare and
other benefits, a lump sum cash payment of $22,000 will be paid to the
Executive within 30 days following the date of termination of
employment.
(d) Excise Tax Matters in General. In the event that the
amounts and benefits payable under Section 6(a), 6(b) and 6(c), when
added to other amounts and benefits which may become payable to the
Executive by Main and/or the Bank, are such that he becomes subject to
the excise tax provisions of Code Section 4999, Main and/or the Bank
will pay him such additional amount or amounts as will result in his
retention (after the payment of all federal, state and local excise,
employment, and income taxes on such payments and the value of such
benefits) of a net amount equal to the net amount he would have
retained had the initially calculated payments and benefits been
subject only to income and employment taxation. For purposes of the
preceding sentence, the Executive will be deemed to be subject to the
highest marginal federal, state and local tax rates. All calculations
required to be made under this subsection will be made by Main's
independent certified public accountants, subject to the right of
Executive's representative to review the same. All such amounts
required to be paid will be paid at the time any withholding may be
required under applicable law, and any additional amounts to which the
Executive may be entitled will be paid or reimbursed no later than 15
days following confirmation of such amount by Main's accountants. In
the event any amounts paid hereunder are subsequently determined to be
in error because estimates were required or otherwise, the parties
agree to reimburse each other to correct such error, as appropriate,
and to pay interest thereon at the applicable federal rate (as
determined under Code Section 1274A for the period of time such
erroneous amount remained outstanding and unreimbursed). The parties
recognize that the actual implementation of the provisions of this
subsection are complex and agree to deal with each other in good faith
to resolve any questions or disagreements arising hereunder.
7. Confidentiality.
(a) As used in this section, the term "Confidential
Information" means any and all information regarding the organization,
business or finances of Main or any of its subsidiaries and affiliates,
including, but not limited to, any and all business plans and
strategies, financial information, proposals, reports, marketing plans
and information, cost information, customer information, claims history
and experience data, sales volume and other sales
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statistics, personnel data, pricing information, concepts and ideas,
information respecting existing and proposed investments and
acquisitions, and information regarding customers and suppliers, but
the term "Confidential Information" will not include information
created by the Executive or which prior to the Executive's receipt
thereof (i) was generally publicly available, or (ii) was in the
Executive's possession free of any restrictions on it use or disclosure
and from a source other than Main or any of its subsidiaries or
affiliates.
(b) The Executive acknowledges and agrees that his employment
by Main and the Bank will afford him an opportunity to acquire
Confidential Information and that the misappropriation or disclosure of
any Confidential Information would cause irreparable harm to Main and
its subsidiaries and affiliates.
(c) During the Employment Period and for a period of two years
thereafter, the Executive will not use for the benefit of anyone other
than Main and its subsidiaries and affiliates or disclose any of the
Confidential Information for any reason or purpose whatsoever except to
authorized representatives of such business entities or as directed or
authorized by Main.
(d) With respect to those items of Confidential Information
which constitute trade secrets under applicable law, the Executive's
obligations of confidentiality and nondisclosure as set forth in this
section will continue and survive after the two-year period as provided
in Subsection (c) to the greatest extent permitted by applicable law.
(e) The Executive will not remove any records, documents, or
any other tangible items (excluding the Executive's personal property)
from the premises of Main or its subsidiaries or affiliates, in either
original or duplicate form, except as needed in the ordinary course of
performing services hereunder.
(f) Upon termination of this Agreement, the Executive will
immediately surrender to the owner thereof all documents (other than
documents created by him) in his possession, custody or control
embodying the Confidential Information or any part thereof and will not
thereafter remove the same from the premises on which it is located.
(g) The provisions of this Section 7 shall survive termination
of this Agreement for any reason.
8. Remedies. Executive acknowledges and agrees that the remedy at law
of Main and of the Bank for a breach or threatened breach of any of the
provisions of Section 7 would be inadequate and, in recognition of this fact, in
the event of a breach or threatened breach by the Executive of any of the
provisions of Section 7, it is agreed that, in addition to the remedy at law,
Main and the Bank will be entitled to, without posting any bond, and the
Executive agrees not to oppose any request of Main and the Bank for, equitable
relief in the form of specific performance, a temporary restraining order, a
temporary or permanent injunction, or any other equitable remedy which may then
be available. Nothing herein contained will be construed as prohibiting Main and
the Bank from pursuing any other remedies available to them for such breach or
threatened breach.
9. Arbitration. Main, the Bank and Executive recognize that in the
event a dispute should arise between them concerning the interpretation or
implementation of this Agreement, lengthy and expensive litigation will not
afford a practical resolution of the issues within a reasonable period of time.
Consequently, each party agrees that all disputes, disagreements and questions
of interpretation concerning this Agreement are to be submitted for resolution
to the American Arbitration Association ("Association") in Philadelphia,
Pennsylvania, in accordance with the Individual Employment Dispute Resolution
rules of the Association. Main and the Bank, or Executive, may initiate an
arbitration proceeding at any time by giving
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notice to the others in accordance with the rules of the Association.
The Association will designate a single arbitrator to conduct the
proceeding, but Main and the Bank, and the Executive, may, as a matter
of right, require the substitution of a different arbitrator chosen by
the Association. Each such right of substitution may be exercised only
once. The arbitrator will not be bound by the rules of evidence and
procedure of the courts of the Commonwealth of Pennsylvania but will be
bound by the substantive law applicable to this Agreement. The decision
of the arbitrator, absent fraud, duress, incompetence or gross and
obvious error of fact, will be final and binding upon the parties and
will be enforceable in courts of proper jurisdiction. Following written
notice of a request for arbitration, Main and the Bank, and the
Executive, will be entitled to an injunction restraining all further
proceedings in any pending or subsequently filed litigation concerning
this Agreement, except as otherwise provided herein.
10. Legal Expenses. Main and/or the Bank will pay to the Executive all
reasonable legal fees and expenses when incurred by the Executive in seeking to
obtain or enforce any right or benefit provided by this Agreement, provided he
brings the action in good faith, and he prevails.
11. Indemnification. Main and the Bank will indemnify the Executive, to
the fullest extent permitted under Pennsylvania and federal law, with respect to
any threatened, pending or completed legal or regulatory action, suit or
proceeding brought against him by reason of the fact that he is or was a
director, officer, employee or agent of Main or the Bank, or is or was serving
at the request of Main or the Bank as a director, officer, employee or agent of
another person or entity. To the fullest extent permitted by Pennsylvania and
federal law, Main and the Bank will, in advance of final disposition, pay any
and all expenses incurred by the Executive in connection with any threatened,
pending or completed legal or regulatory action, suit or proceeding with respect
to which he may be entitled to indemnification hereunder. Main and the Bank will
use their best efforts to obtain insurance coverage for the Executive under a
policy covering directors and officers thereof against litigation, arbitrations
and other legal and regulatory proceedings; provided, however, that nothing
herein is to be construed as requiring such action if the Board of Directors of
Main and the Bank determine that such insurance coverage cannot be obtained at
commercially reasonable rates.
12. Notices. Any notice required or permitted to be given under this
Agreement will, to be effective hereunder, be given to both Main and the Bank,
in the case of notices given by the Executive, and will, to be effective
hereunder, be given by both Main and the Bank, in the case of notices given to
the Executive. Any notice given by Main, to the extent required will be deemed
to be given by Main and the Bank. Any notice given to Main, to the extent
required will be deemed to be given to Main and the Bank. Any such notice will
be deemed properly given if in writing and if mailed by registered or certified
mail, postage prepaid with return receipt requested, to the residence of the
Executive, in the case of notices to the Executive, and to the respective
principal offices of Main and of the Bank, in the case of notices to Main and
the Bank.
13. Waiver. No provision of this Agreement may be modified, waived, or
discharged unless such waiver, modification, or discharge is agreed to in
writing and signed by the Executive, an executive officer of Main, and an
executive officer of the Bank, each such officer specifically designated by the
Board of Directors of Main and the Bank, respectively. No waiver by any party
hereto at any time or any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party will be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time.
14. Assignment. This Agreement is not assignable by any party hereto,
except by Main and the Bank to any successor in interest to the respective
businesses of Main and the Bank.
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15. Entire Agreement. This Agreement contains the entire agreement of
the parties relating to the subject matter of this Agreement and, in accordance
with the provisions of Section 15, supersedes any prior agreement of the
parties.
16. Successors; Binding Agreement.
(a) Main and the Bank will require any successor (whether
direct or indirect, by purchase, merger, consolidation, or otherwise)
to all or substantially all of the business and/or assets of Main
and/or the Bank to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that Main and the Bank would
be required to perform it if no such succession had taken place.
Failure by Main and the Bank to obtain such assumption and agreement
prior to the effectiveness of any such succession will constitute a
material breach of this Agreement. As used in this Agreement, "Main"
and the "Bank" means Main and the Bank as hereinbefore defined and any
successor to the business and/or assets of Main and/or the Bank as
aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
(b) This Agreement will inure to the benefit of and be
enforceable by the Executive's personal or legal representatives,
executors, administrators, heirs, distributees, devisees, and legatees.
If the Executive should die while any amount is payable to the
Executive under this Agreement if the Executive had continued to live,
all such amounts, unless otherwise provided herein, will be paid in
accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee, or, if there is no such designee, to the
Executive's estate.
17. Termination.
(a) Unless the Executive's employment is terminated pursuant
to the provisions of Section 3 or Section 5, the term of this Agreement
will be for a period commencing on the date of this Agreement and
ending on December 31, 2002; provided, however, that this Agreement
will be automatically renewed on January 1, 2002 for the two-year
period commencing on such date and ending on December 31, 2003, unless
either party gives written notice of non-renewal to the other party on
or before December 1, 2001 (in which case this Agreement will continue
in effect through December 31, 2002); and provided further, that if
this Agreement is renewed on January 1, 2002, it will be automatically
renewed on January 1 of each subsequent year (the "Annual Renewal
Date") for a period ending two years from each Annual Renewal Date
unless either party gives written notice of non-renewal to the other
party at least 30 days prior to an Annual Renewal Date (in which case
this Agreement will continue in effect for a term ending one year from
the Annual Renewal Date immediately following such notice). For
purposes of the preceding sentence Main and the Bank will be considered
one party.
(b) Any termination of the Executive's employment under this
Agreement or of the term of this Agreement will not affect the benefit
and confidentiality of information provisions of Sections 6, 7, 8, 9,
10 and 11 shall survive any termination of employment of the term of
this Agreement and remain in full force and effect in accordance with
their respective terms.
(c) Nothing herein will be construed as limiting, restricting
or eliminating any rights the Executive may have under any plan,
contract or arrangement to which he is a party or in which he is a
vested participant; provided, however, that any termination payments
required hereunder will be in
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lieu of any severance benefits to which he may be entitled under a
severance plan or arrangement of Main and the Bank; and provided
further, that if the benefits under any such plan or arrangement may
not legally be eliminated, then the payments hereunder will be
correspondingly reduced in such equitable manner as the Board of
Directors of Main may determine.
(d) Notwithstanding any provisions of this Agreement to the
contrary, no further payments or benefits shall be paid to the
Executive following the end of the term as described in subsection
17(a) above.
18. No Mitigation or Offset. The Executive will not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
employment or otherwise; nor will any amounts or benefits payable or provided
hereunder be reduced in the event he does secure employment, except as otherwise
provided herein.
19. Validity. The invalidity or unenforceability of any provisions of
this Agreement will not affect the validity or enforceability of any other
provision of this Agreement, which will remain in full force and effect.
20. Applicable Law. Except to the extent preempted by federal law, this
Agreement will be governed by and construed in accordance with the domestic
internal law of the Commonwealth of Pennsylvania.
21. Number. Words used herein in the singular will be construed as
being used in the plural, as the context requires, and vice versa.
22. Headings. The headings of the sections and subsections of this
Agreement are for convenience only and will not control or affect the meaning or
construction or limit the scope or intent of any of the provisions of this
Agreement.
23. References to Entities. All references to Main will be deemed to
include references to the Bank, as appropriate in the relevant context, and vice
versa. As of the date of this Agreement, Main and the Bank share one Board of
Directors. To the extent, under this Agreement or law, an action is required by
the Board of Directors of the Bank, a similar action of the board of Directors
of Main shall be deemed sufficient
24. Guaranty. Main hereby irrevocably and unconditionally guarantees to
the Executive the full and timely performance by the Bank of each and every
obligation of the Bank contained in this Agreement.
25. Effective Date. This Agreement will become effective immediately
upon the execution and delivery of this Agreement by the parties hereto.
26. Withholding for Taxes. All amounts and benefits paid or provided
hereunder will be subject to withholding for taxes as required by law.
27. Individual Agreement. This Agreement is an agreement solely between
and among the parties hereto. It is intended to constitute a nonqualified
unfunded agreement for the benefit of a key management employee and will be
construed and interpreted in a manner consistent with such intention.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
MAIN STREET BANCORP, INC.
By /s/ Xxxxx X. Xxxxxxxx
-----------------------
(SEAL) Attest: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
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11
(Assistant) Secretary
("Main")
MAIN STREET BANK
By /s/ Xxxxx X. Xxxxxxxx
-----------------------
(SEAL) Attest: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
(Assistant) Secretary
("Bank")
Witness:
/s/ Xxxxx Xxxxxxx /s/ Xxxxxx X. Xxxx (SEAL)
------------------- -------------------
XXXXXX X. XXXX
("Executive")
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