Date of Notification: September 26, 2006
Notice to Employee: This is a legal document. You are advised to
consult with an attorney prior to signing this agreement.
EMPLOYMENT TRANSITION AGREEMENT & GENERAL RELEASE
This Employment Transition Agreement & General Release (the "Agreement") is
entered by and between First National Bank of Xxxxxxx County and its affiliates
(the "Bank") and Xxxxx X. Xxxxx (the "Employee").
WHEREAS the Employee has been employed by the Bank as Executive Vice
President - Trust and Investment Services;
WHEREAS the Employee and the Bank mutually desire to amicably
transition Employee's employment with the Bank to the new position of
Senior Vice President - Chief Fiduciary Officer and to supercede any prior
contract of employment between Employee and the Bank;
WHEREAS the parties intend that the salary, car allowance and group
term life insurance received by Employee in the first twelve months after
the Commencement Date of this Agreement shall provide sufficient
consideration to support the releases provided by her under this Agreement.
NOW, THEREFORE, in consideration of the covenants and mutual promises
herein contained, and intending to be legally bound hereby, the Employee
and the Bank agree as follows:
1. Employment. The Bank hereby employs the Employee as a Senior Vice
President - Chief Fiduciary Officer (the "Position") and the Employee
hereby accepts such employment and its attendant responsibilities, and
agrees to serve the Bank in such capabilities as set forth in the job
description which is attached hereto as Exhibit A. Employee shall also be
expected to meet certain performance goals, as established by the Executive
Vice President - Trust and Investment Services, which goals shall be
established after conferring with Employee during the first month after the
Commencement Date of this Agreement. Said goals and progress there under
will be discussed with Employee quarterly.
2. Services. In carrying out her duties the Employee shall report to
and accept direction from the Executive Vice President - Trust and
Investment Services.
The Employee shall serve the Bank diligently, competently, and to the best
of her abilities during the period of employment. The Employee shall devote
substantially all of her time and attention to the business of the Bank and
its affiliates, and shall not undertake any other duties which conflict
with these responsibilities.
The Employee shall render such services as may reasonably be required of
her to accomplish the business purposes of the Bank, which shall include
specific responsibility as set forth in the job description, Exhibit A, and
such performance goals and duties as the Executive Vice President - Trust
and Investment Services may assign to her from time to time and which are
appropriate to the Position.
Nothing in this Agreement shall be deemed to restrict the Bank's ability to
terminate Employee's employment at any time in the Bank's sole discretion,
and such employment shall be "at will."
3. Term. The term of employment of the Employee under this Agreement
shall commence on October 18, 2006 ("Commencement Date") and shall continue
in full force and effect until the earliest to occur of the following
dates: a) the Employee or the Bank shall have given written notice of
intent to terminate this Agreement, which notice shall be given at least
fourteen (14) days before the effective date of termination; b) the end of
the first day after twelve (12) months from the Commencement Date. In any
event, obligations under Paragraphs 8 and 13 will continue and not expire.
4. Compensation.
(a) Base Salary. The Employee's base starting salary shall be at an
annualized rate of One Hundred Thirty Thousand Dollars ($130,000) ("Annual
Base Salary"). The Employee's Annual Base Salary will be reduced to One
Hundred Twelve Thousand Dollars ($112,000) on the first day after twelve
months from the Commencement Date.
(b) Annual Bonus. Employee will be eligible for bonus payments, if
any, for Fiscal Year 2006 under the Executive Incentive Plans. Employee
will be eligible to participate in the 2007 Incentive Plan that covers
other Senior Vice Presidents.
(c) Car Allowance. For the first twelve months of Employee's
employment under this Agreement, the Bank shall pay Employee a monthly car
allowance of Seven Hundred Dollars ($700.00).
(d) Paid Time Off. Employee will be eligible to accrue Paid Time Off
(PTO) while she is an active employee in accord with the Bank's PTO policy.
5. Benefits. The Employee will be eligible to continue to participate
in and pay premiums for the Company's group health and welfare benefits
plans, pursuant to the terms of such plans and applicable law. These plans
include, as Employee has elected: 401 (k), Medical and Dental Group
Insurance, and Medical Flexible Spending. In addition, the employee's group
term disability and term life insurance will continue, and the Bank will
pay the full premiums during the first twelve (12) months after the
Commencement Date. Contributions to the Supplemental Benefit Retirement
program will cease with the pay period ending October 27, 2006. Employee
will also have coverage for Voluntary Group life insurance as she is
currently enrolled and will pay the required premiums on a monthly basis
unless she elects to withdraw from participation.
6. Employee Representations. Employee hereby represents and
acknowledges to the Bank that:
(a) SHE HAS BEEN ADVISED, IN WRITING, TO READ THIS ENTIRE
AGREEMENT CAREFULLY, AND TO CONSULT WITH AN ATTORNEY OF HER CHOICE
PRIOR TO SIGNING THIS AGREEMENT;
(b) she has had twenty-one (21) days to consider the waiver of
her rights under the Age Discrimination in Employment Act of 1967, as
amended ("ADEA") prior to signing this Agreement;
(c) she has been advised, in writing, that she has a full seven
(7) days after she signs this Agreement to revoke it, and that this
Agreement will not become effective until the seven (7) day revocation
period has run and she has notified the Bank, in writing, that she has
elected not to revoke this Agreement;
d) the consideration provided her under this Agreement is
sufficient to support the releases provided by her under this
Agreement;
(e) she understands and agrees that she will receive compensation
and benefits specified above in exchange for signing this Agreement,
and that she would not have received such separation pay and benefits
if she had not signed this Agreement;
(f) she has disclosed to the Bank any information in her
possession concerning any conduct involving the Bank or its affiliates
that may be unlawful or violates Bank Policy in any respect; and
(g) she has not filed any charges, claims or lawsuits against the
Bank involving any aspect of her employment which have not been
terminated as of the date of this Agreement.
Employee understands that the Bank regards the representations
made by her as material and that the Bank is relying on these
representations in entering into this Agreement.
7. Effective Date of the Agreement. Employee shall have seven (7) days
from the date she signs this Agreement to revoke her consent to the waiver
of her rights under the ADEA. Such revocation shall be in writing addressed
and delivered to the Bank official executing this Agreement on behalf of
the Bank which action shall revoke this Agreement. If Employee revokes this
Agreement, all of its provisions shall be void and unenforceable. If
Employee does not revoke her consent, the Agreement will take effect on the
first day after the end of this seven day revocation period (the "Effective
Date").
8. General Release. The Employee and her heirs, assigns, and agents
release, waive, and discharge the Bank Released Parties, as defined below,
from each and every claim, action or right of any sort, known or unknown,
arising on or before the Effective Date.
(a) The foregoing release includes, but is not limited to, any
and all claims, liabilities, demands, and causes of action known or
unknown, fixed or contingent, which the Employee may have or claim to
have against the Bank or the other Released Parties including, without
limitation, claims arising out of or in any way connected to
Employee's employment or termination of employment with the Bank. By
this Agreement, the Employee knowingly and voluntarily waives any
claims under any and all laws which provide legal restrictions on
Bank's right to terminate Employee's employment or affect the terms
and conditions of Employee's employment, including claims under any
federal, state, or other governmental statute, regulation, ordinance
or other provision, including, without limitation, claims arising
under: (1) Title VII of the Civil Rights Act of 1964 and the Civil
Rights Act of 1991; (2) the Americans with Disabilities Act; (3) the
Pennsylvania Human Relations Act; (4) the Age Discrimination in
Employment Act; (5) the Older Workers Benefit Protection Act; (6)
known claims under the Employee Retirement Income Security Act of
1974, as amended, ("ERISA"); (7) the Family and Medical Leave Act; (8)
Section 1981 through 1988 of Title 42 U.S.C.; (9) any other federal,
state or local law, regulation, ordinance or other provision of a
similar nature to any of the foregoing; or (10) any other provision
providing for relief by the Employee against Bank or the other
Released Parties, as well as any amendments to the foregoing statutes,
regulations, ordinances or other provisions. The Employee also waives
any common law claims against the Bank and the other Released Parties,
any claim for personal injury, wrongful discharge, negligence,
infliction of emotional distress, wrongful hiring or retention, breach
of contract, violation of public policy, whistleblower claims,
retaliation or any form of tort, and any and all claims for counsel
fees and costs attendant thereto.
(b) The Employee represents that she understands the foregoing
release, that rights and claims under the Age Discrimination in
Employment Act of 1967, as amended, are among the rights and claims
against the Bank she is releasing, and that she understands that she
is not releasing any rights or claims arising after the Effective
Date. The Employee also understands that she is not waiving any rights
or claims that cannot be legally waived. Subject to the foregoing,
this Agreement shall operate as a general release of any and all
claims to the fullest extent of applicable law.
(c) The Employee further agrees never to sue the Bank or cause
the Bank to be sued regarding any matter within the scope of the above
release. If the Employee violates this release by suing the Bank or
causing the Bank to be sued, the Employee agrees to pay all costs and
expenses of defending against the suit incurred by the Bank, including
reasonable attorneys' fees except to the extent that paying such costs
and expenses is prohibited by law or would result in the invalidation
of the foregoing release.
(d) Bank Released Parties include the Bank, all current and
former parents, subsidiaries, related companies, partnerships or joint
ventures, and, with respect to each of them, their predecessors and
successors; and, with respect to each such entity, all of its past,
present, and future employees, officers, directors, stockholders,
owners, representatives, assigns, attorneys, agents, insurers,
employee benefit programs (and the trustees, administrators,
fiduciaries and insurers of such programs), and any other person
acting by, through, under or in concert with any of the persons or
entities listed in this paragraph, and their successors.
9. Confidential Information. The Employee acknowledges that, in
connection with her employment at the Bank, she obtained knowledge about
confidential and proprietary information of the Bank, including but not
limited to privileged and confidential matters relating to the Bank's legal
matters, lists of customers, technical information about Bank products, and
strategic plans of the Bank's business (hereinafter the "Information").
Employee agrees not to use, publish or otherwise disclose any Information
to others, including but not limited to a subsequent employer or competitor
of the Bank, either prior to or following the Effective Date. If the
Employee has any question regarding what data or information would be
considered by the Bank to be information subject to this provision, the
Employee agrees to contact the Executive Vice President - Trust and
Investment Services in writing for clarification.
10. Covenant Not to Compete or Solicit.
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(a) Employee shall not, during the twelve (12) months following
the Commencement Date, for herself, or on behalf of any other person,
firm, partnership, corporation, or other entity, directly or
indirectly engage in any business or provide any services which
compete with the Bank in Xxxxxxx County, Pennsylvania without giving
the President of the Bank prior written notice as required in
Paragraph 10 (c). For purposes of this paragraph, any entity which is
insured by the Federal Deposit Insurance Corporation or has trust
powers and has an office in Xxxxxxx County, Pennsylvania is deemed a
competitor of the Bank.
(b) The Employee agrees that for a period of twelve (12) months
after the Commencement Date, she will not, without prior written
approval from the President of the Bank , directly or indirectly
solicit any person who is an employee or a client of the Bank to
terminate or otherwise modify his/her relationship with the Bank.
(c) In the event the Employee wishes to enter into any
relationship or employment prior to the end of twelve (12) months
after the Commencement Date, which would be covered by the above
non-compete provision, Employee agrees to provide written notification
to the President of the Bank at least 48 hours prior to entering any
such relationship or employment.
(d) In the event that Employee breaches or the Bank reasonably
believes that Employee is about to breach, any of the covenants of
Paragraph 10, Employee agrees that the Bank will be entitled to
injunctive relief. Employee recognizes that the Bank will suffer
immediate and irreparable harm and that money damages will not be
adequate to compensate the Bank or to protect and preserve the status
quo. Therefore, Employee HEREBY CONSENTS TO THE ISSUANCE OF A
TEMPORARY RESTRAINING ORDER, WITH OR WITHOUT NOTICE, AND A PRELIMINARY
OR PERMANENT INJUNCTION.
11. Return of Bank Property. The Employee agrees that on the effective
date of termination she will return all property of the bank, including,
but not limited to, her cell phone, her Bank-owned credit card, all Bank
files, all keys including those to Bank-owned real estate and property. The
Employee further agrees that as of the effective date of termination, she
will have no outstanding balance on her corporate credit card for which
appropriate accounting has not been submitted.
12. Non-Disparagement. The Employee agrees that she will not make or
cause to be made any statements that disparage, are inimical to, or damage
the reputation of the Bank or any of its past or present affiliates,
subsidiaries, agents, officers, directors or employees. In the event such a
communication is made to anyone, including but not limited to the media,
public interest groups and publishing companies, it will be considered a
material breach of the terms of this Agreement.
13. Confidentiality. The Employee shall keep strictly confidential all
the terms and conditions, including amounts, in this Agreement and shall
not disclose them to any person other than the Employee's spouse, the
Employee's legal or financial advisor, or unless compelled by law to do so.
If a person not a party to this Agreement requests or demands, by subpoena
or otherwise, that the Employee disclose or produce this Agreement or any
terms or conditions thereof, the Employee shall immediately notify the Bank
and shall give the Bank an opportunity to respond to such notice before
taking any action or making any decision in connection with such request or
subpoena.
14. Entire Agreement. This Agreement sets forth the entire agreement
and understanding between the parties hereto and may be changed only with
the written consent of both parties and only if both parties make express
reference to this Agreement. The parties have not relied on any oral
statements that are not included in this Agreement. Except as otherwise
provided herein, this Agreement supersedes all prior agreements and
understandings concerning the subject matter of this Agreement. Any
modifications to this Agreement must be in writing and signed by Employee
and an authorized employee or agent of the Bank.
15. Severability of Provisions. In the event that any provision in
this Agreement is determined to be legally invalid or unenforceable by any
court of competent jurisdiction, and cannot be modified to be enforceable,
the affected provision shall be stricken from the Agreement, and the
remaining terms of the Agreement and its enforceability shall remain
unaffected.
16. Applicable Law. This Agreement shall be construed, interpreted and
applied in accordance with the law of the Commonwealth of Pennsylvania,
without regard to the provisions on conflicts of law.
17. Successors and Assigns. This Agreement shall extend to, be binding
upon, and inure to the benefit of the Bank, Employee and their respective
successors, heirs, and assigns.
18. Counterparts. This Agreement may be executed by counterpart, each
of which when so executed shall be deemed to be an original, and all of
which when taken together shall constitute one and the same agreement.
19. Notices/Requests. Any notice or request under this Agreement shall
be in writing, and sent to the other party via Federal Express or U.S.
Postal Service certified mail with return receipt, addressed as follows:
If to Employee:
Xxxxx X. Xxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
If to the Bank:
Xxxxxxx X. Xxxxxx
Executive Vice President
- Human Resources and Administration
First National Bank of Xxxxxxx County
000 Xxxxx Xxxxxxx Xxxxxx
P. O. Box 523 West Chester, PA 19381
20. Attorneys' Fees. Each party shall be responsible for its own
attorneys' fees and, in no event, shall the Bank be responsible for
Employee's attorneys' fees.
21. Waiver of Breach/Enforceability. The waiver by either party hereto
of a breach or violation of any provisions of the Agreement shall not
operate as, or be construed to be, a waiver of any subsequent breach of the
same or other provision hereof.
I acknowledge that I understand the above agreement, which includes
the release of all claims. I understand that I am waiving unknown claims
and I am doing so knowingly and voluntarily, without any coercion or
duress.
EMPLOYEE FIRST NATIONAL BANK
OF XXXXXXX COUNTY
/s/Xxxxx X. Xxxxx By: /s/Xxxxxxx X. Xxxxxx
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Xxxxx X. Xxxxx Xxxxxxx X. Xxxxxx
Executive Vice President
Human Resources and Administration
Date: 10/18/06 Date: 10/18/06
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EXHIBIT A
JOB TITLE: APPROVED BY:
SVP Chief Fiduciary Officer
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Division Manager Date
REPORTS TO: APPROVED BY:
EVP Trust & Investments
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Department Manager Date
DEPARTMENT: APPROVED BY:
Trust & Investments
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HR Department Date
FUNCTION: Provides fiduciary expertise and compliance guidance for the Trust and
Investment Division. Acts as relationship manager and fiduciary officer for
major client accounts.
DUTIES:
1. Acts as Chair for monthly Fiduciary Committee meetings.
2. Provides ongoing fiduciary guidance to portfolio managers, relationship
officers, administrators and business development officers.
3. Oversees department compliance with OCC regulatory requirements including the
annual OCC review, exam and required reporting.
4. Ensures overall compliance with OCC regulations, Xxxxxxxx-Xxxxx and other
regulatory bodies.
5. Performs annual document review on existing client accounts and oversees new
business acceptance process.
6. Oversees preparation of Trust Committee materials and actively participates
in Trust Committee.
7. Assumes responsibility as relationship and fiduciary officer for major client
accounts.
8. Supports sales of fiduciary services and coordinates with sales efforts with
ex ternal referral sources.
9. Performs additional related duties as required.
MINIMUM QUALIFICATIONS:
-Bachelor's degree or equivalency
-Trust and fiduciary experience in excess of 10 years
-Excellent verbal and written communication skills
-Computer skills with emphasis in Excel and Word
I have received and reviewed a copy of this job description and, taken as a
whole, it accurately reflects my position at First National Bank of Xxxxxxx
County as described to me.
/S/Xxxxx X. Xxxxx 10/18/06
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Employee's Signature Date
