EXHIBIT 99
EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of January, 1998, between Xxxxx
County National Bank, a national banking association located at 000 Xxx
Xxxxxxxxxx Xxxx, X.X. Xxx 0000, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, (the "Bank") and
ACNB Corporation, a Pennsylvania business corporation located at 000 Xxx
Xxxxxxxxxx Xxxx, X.X. Xxx 0000, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, (the
"Corporation") and Xxxxxx X. Xxxxxx, an adult individual residing in
Pennsylvania (the "Executive").
WHEREAS, Executive presently is the duly elected and acting President of
the Corporation and the Bank; and
WHEREAS, the Corporation and Bank recognize the valuable services that
Executive has rendered and desires to be assured that Executive will continue
his active participation in the business of the Corporation and the Bank; and
WHEREAS, the Corporation, Bank and Executive desire to set forth benefits
to which the Executive would be entitled in the event that Executive's
employment by the Bank/Corporation is terminated as outlined herein;
WHEREAS, the Executive desires to serve the Bank and Corporation in an
executive capacity under the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and intending to be legally bound hereby, the parties agree as
follows:
1. TERMS OF EMPLOYMENT. The initial term of this Agreement shall begin on
January 1, 1998 and shall continue for a period of three (3) years
thereafter, or until terminated as
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provided herein (including as set forth in Paragraph 9 of this Agreement). This
Agreement shall be subject to automatic renewal for successive one (1) year
periods, subject to the terms and conditions set forth in this Agreement, unless
either party notifies the other in writing at least ninety (90) days prior to
termination of the then current term of the party's desire to terminate this
Agreement.
2. POSITION AND DUTIES. The Executive shall serve as the President and CEO of
the Bank and Corporation and a member of the Board of Directors of the Bank
and Corporation and shall have supervision and control over, and
responsibility for, the general management and operation of the Bank and
Corporation, and shall have such other powers and duties as may from time
to time be prescribed by the Board of Directors of the Bank and
Corporation, provided that such duties are consistent with the Executive's
position as the President in charge of the general management of the Bank
and Corporation.
3. ENGAGEMENT IN OTHER EMPLOYMENT. The Executive shall devote all his working
time, ability and attention to the business of the Bank and Corporation
during the term of this Agreement. The Executive shall notify the Board of
Directors of the Bank and Corporation in writing and receive their written
consent before the Executive engages in any other business or commercial
activities, duties or pursuits, including, but not limited to,
directorships of other companies. Under no circumstances may the Executive
engage in any business or commercial activities, duties or pursuits which
compete with the business or commercial activities of the Bank and/or
Corporation, nor may the Executive serve as a director or officer or in any
other capacity in a company which competes with the Bank and/or
Corporation.
4. COMPENSATION.
(a) Annual Direct Salary: As compensation for services rendered the
Corporation and the Bank under this Agreement, the Executive shall be
entitled to receive from the Bank
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an annual direct salary of ___________________________($__________________)
Dollars per year (the "Annual Direct Salary"), minus applicable taxes and
withholdings payable in substantially equal monthly installments (or such
other more frequent intervals as may be determined by the Board of
Directors of the Bank as payroll policy for senior executive officers)
prorated for any partial employment period. The annual direct salary shall
not be reduced without Executive's written consent, except in cases of
national financial depression or other emergency when compensation
reduction has been implemented by the Corporation and the Bank as to all
senior executive officers of the Corporation and the Bank.
(b) Bonus. The Board of Directors of the Corporation may, in its sole
discretion, provide for payment of a yearly bonus to the Executive in such
an amount as it may deem appropriate to provide incentive to the Executive
and to reward the Executive for his performance.
(c) Disability Benefits. If Executive becomes disabled as the result of a
non- work related illness, injury or impairment, Executive may participate
in the Bank's then existing short and long term disability plans pursuant
to the terms and conditions set forth in each plan. Executive understands
and agrees that these plans and policies may be amended or terminated at
any time at the discretion of the Bank and/or Corporation.
(d) Business Expenses. During the term of his employment hereunder, the
Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by him (in accordance with the policies and
procedures established by the Board of Directors of the Corporation or the
Bank for its senior executive officers) in performing services hereunder,
provided that the Executive properly accounts therefor in accordance with
Corporation or Bank policy.
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(e) Vacation/Time Off. Executive's vacation/time off benefits shall accrue
in accordance with the Bank's vacation/time off policy.
5. OFFICES. The Executive agrees to serve without additional compensation as a
director on the Board of Directors of the Bank and Corporation and, if
elected or appointed thereto, without additional compensation in one or
more offices of the Bank and Corporation, and/or in one or more offices or
as a director of any of the Bank and/or Corporation's non-banking
subsidiaries; provided, however, the Executive shall not be required to
serve in such additional offices or as a director of the Bank and/or
Corporation or any subsidiary if such service would expose him to adverse
financial consequences.
6. DIRECTORS AND OFFICERS LIABILITY INSURANCE. The Bank and/or Corporation
shall use its best efforts to obtain insurance coverage for the Executive
under an insurance policy covering officers and directors of the Bank and
Corporation against certain lawsuits, arbitrations or other legal or
regulatory proceedings; however, nothing herein shall be construed to
require the Bank and/or Corporation to obtain such insurance, if the Board
of Directors of the Bank and/or Corporation determine that such coverage
cannot be obtained at a commercially reasonable price.
7. UNAUTHORIZED DISCLOSURE. The Executive shall not, during his employment, or
at any later time, the Executive shall not, without the written consent of
the Board of Directors of the Bank and Corporation or a person authorized
thereby, knowingly disclose to any person, other than an employee of the
Bank or the Corporation or a person to whom disclosure is reasonably
necessary or appropriate in connection with the performance by the
Executive of his duties as an executive of the Bank and Corporation, any
material confidential information obtained by him while in the employ of
the Bank and Corporation with respect to any of the Bank and/or
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Corporation's services, products, improvements, formulas, designs or
styles, processes, customers, methods of distribution or any business
practices the disclosure of which could be or will be materially damaging
to the Bank and/or Corporation provided, however, that confidential
information shall not include any information known generally to the public
(other than as a result of unauthorized disclosure by the Executive) or any
information of a type not otherwise considered confidential by persons
engaged in the same business or a business similar to that conducted by the
Bank and Corporation.
8. RESTRICTIVE COVENANT. The Executive covenants and agrees as follows: the
Executive shall not directly or indirectly, within the marketing area of
the Bank and/or Corporation (defined as an area within a fifty (50) mile
radius surrounding the main office of the Bank), enter into or engage
generally in direct or indirect competition with the Bank and/or
Corporation or any subsidiary of the Bank and/or Corporation, either as an
individual or as a partner or joint venturer, or as a director, officer,
shareholder holding greater than 5% of the entity's stock, employee, agent,
independent contractor, lessor or creditor of or for any other person, for
a period of [one (1)] years after the date of termination of his
employment. The existence of any claim or cause of action of the Executive
against the Bank and/or Corporation, whether predicated on this Agreement
or otherwise, shall not constitute a defense to the enforcement by the Bank
and/or Corporation of this covenant. The Executive agrees that any breach
of the restrictions set forth in this Paragraph will result in irreparable
injury to the Bank and/or Corporation for which it shall have no adequate
remedy at law and the Bank and/or Corporation shall be entitled to
injunctive relief in order to enforce the provisions hereof. In the event
that this Paragraph shall be determined by any court of competent
jurisdiction to be unenforceable in part by reason of it being too great a
period
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of time or covering too great a geographic area, it shall be in full force
and effect as to that period of time or geographic area determined to be
reasonable by the court.
9. TERMINATION.
(a) Death. The Executive's employment hereunder shall terminate upon his
death.
(b) Disability.
(1) Suspension of Compensation. If, as a result of physical or mental
injury or impairment, Executive is unable to perform all of the
essential job functions of his position on a full time basis with
or without a reasonable accommodation and without posing a direct
threat to himself and others, for a period of one hundred eighty
(180) days, all obligations of Bank and Corporation to pay
Executive an Annual Direct Salary as set forth in Paragraph 4(a)
of this Agreement are suspended. Any paid time off, sick leave,
or short term disability pay Executive may be entitled to
receive, pursuant to an established disability plan or program of
the Bank and/or Corporation shall be considered part of the
compensation Executive shall receive while disabled, and shall
not be in addition to the compensation received by Executive
under this provision of the Agreement.
(2) Disability Termination. Executive agrees that should he remain
unable to perform all the essential functions of his position on
a full time basis, with or without a reasonable accommodation and
without posing a direct threat to himself or others, after one
hundred eighty (180) days, the Bank and Corporation will suffer
an undue hardship by continuing Executive in his position. Upon
this event, all compensation and employment obligations of the
Bank and Corporation under this
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Agreement shall cease (with the exception of Executive's rights
under the Bank's then existing short term and/or long term
disability plans), and this Agreement shall terminate.
(c) Cause. The Corporation may terminate the Executive's employment
hereunder for "Cause" As used in this Agreement, the Corporation
shall have "Cause" to terminate the Executive's employment hereunder
upon: (1) the willful failure by the Executive to substantially
perform his duties hereunder after notice from the Corporation and a
failure to cure such violation within thirty (30) days of said notice;
(2) the willful engaging by the Executive in misconduct injurious to
the Corporation or Bank; (3) the willful violation by the Executive of
the provisions of Paragraph 3 or 8 hereof after notice from the
Corporation and/or Bank and a failure to cure such violation within
thirty (30) days of said notice, or if said violation cannot be cured
within thirty (30) days, within a reasonable time thereafter unless
the Executive is diligently attempting to cure the violation; (4) the
dishonesty or gross negligence of the Executive in the performance of
his duties; (5) the breach of Executive's fiduciary duty involving
personal profit; (6) the violation of any law, rule or regulation
governing banks or bank officers or any final cease and desist order
issued by a bank regulatory authority any of which materially
jeopardizes the business of the Corporation or Bank; (7) conduct on
the part of Executive which brings public discredit to the Corporation
or Bank; or (8) the Executive's failure to either be elected or to
serve as a member of the Board of Directors of the Corporation after
having been nominated by the Board of Directors unless such nomination
is inconsistent with the duties of the Directors or the terms of this
Agreement.
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(d) Termination by Executive. The Executive may terminate his employment
hereunder, for Good Reason. The term "Good Reason" shall only mean:
(i) any assignment to the Executive, without his consent, of any
duties other than those contemplated by, or any limitation of the
powers of the Executive not contemplated by Paragraph 2 hereof, or
(ii) any removal of the Executive from or any failure to re-elect the
Executive to any of the positions indicated in Paragraph 2 hereof,
except in connection with termination of the Executive's employment as
a result of Executive's disability or for Cause, or (iii) a reduction
of the Executive's Annual Direct Salary other than as provided in
Paragraph 4(a) hereof, or (iv) any other material breach by the
Corporation of this Agreement, provided that the Executive shall have
given the Board of Directors thirty (30) days written notice of such
breach and such breach shall not have been cured within such thirty
(30) day period after receipt of notice, or (v) any Change of Control
(as defined herein).
10. DEFINITION OF CHANGE OF CONTROL. For purposes of this Agreement, the term
"Change of Control" shall mean: A change in control (other than one
occurring by reason of an acquisition of the Corporation by Executive) of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A and any successor rule or regulation
promulgated under the Securities Exchange Act of 1934 (the "Exchange Act")
if Corporation were subject to the Exchange Act reporting requirements;
provided that, without limiting the foregoing, such a change in control
shall be deemed to have occurred if;
(a) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than the Corporation or any "person" who on the
date hereof is a director or officer of the Corporation is or becomes
the "beneficial owner" (as defined in
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Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Corporation representing twenty-five percent (25%)
or more of the combined voting power of the Corporation's then
outstanding securities, or
(b) during any period of two consecutive years during the term of
Executive's employment under this Agreement, individuals who at the
beginning of such period constitute the Board of Directors of the
Corporation cease for any reason to constitute at least a majority
thereof, unless the election of each director who was not a director
at the beginning of such period has been approved in advance by
directors representing at least two-thirds of the directors then in
office who were directors at the beginning of the period.
11. DEFINITION OF DATE OF CHANGE OF CONTROL. For purposes of this Agreement,
the date of Change of Control shall mean: (a) the first date on which a
single person and/or entity, or group of affiliated persons and/or
entities, acquire the beneficial ownership of twenty-five percent (25%) or
more of the Corporation's voting securities, or (b) the date of the
transfer of all or substantially all of the Corporation's assets, or (c)
the date on which a merger, consolidation or combination is consummated, as
applicable, or (d) the date on which individuals who formerly constituted a
majority of the Board of Directors of the Corporation ceased to be a
majority.
12. PAYMENTS UPON TERMINATION.
(a) If the Executive's employment shall be terminated for Cause, or this
Agreement is not renewed by the Bank and the Corporation, the Bank
and/or Corporation
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shall pay the Executive or his estate his full Annual Direct Salary
through the date of termination at the rate in effect at the time of
termination minus applicable taxes and withholdings and any other
amounts owing to the Executive at the date of termination, and the
Bank and/or Corporation shall have no further obligations to the
Executive under this Agreement.
(b) If the Executive's employment is terminated by the Bank and/or
Corporation (other than pursuant to Paragraphs 9(a), 9(b) or 9(c)
hereof or as a result of nonrenewal of this Agreement), or if the
Executive shall terminate his employment for Good Reason, then the
Bank and/or Corporation shall pay the Executive his full Annual Direct
Salary from the date of termination through the last day of the term
of this Agreement, including any extended term by virtue of the
provisions of Paragraph 1 hereof. The Bank shall also maintain in full
force and effect, for the continued benefit of the Executive for the
remaining term of this Agreement, all employee benefit plans and
programs to which the Executive was entitled prior to the date of
termination, if the Executive's continued participation is permitted
under the terms and provisions of such plans and programs. In the
event that the Executive's continued participation in any such plan or
program is not permitted, in lieu of continued participation, the
Executive shall receive an amount equal to the annual contribution
made by the Bank on his behalf under any such plans and programs,
grossed-up by the amount of income and social security taxes
attributable thereto, the amount of such taxes to be determined by a
good faith estimate of the Bank.
(c) If the Executive's employment shall be terminated by the Bank and/or
Corporation because of Executive's disability, the Executive shall
have no further right to
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payment other than those payments Executive may receive as set forth
in the Bank's then existing short term and/or long term disability
plans.
(d) If the Executive's employment shall be terminated because of his
death, the Bank and/or Corporation shall pay the Executive or his
estate his full Annual Direct Salary through the date of termination
at the rate in effect at the time of termination minus applicable
taxes and withholdings and any other amounts owing to the Executive,
and the Bank and Corporation shall have no further obligations to
Executive under this Agreement.
(e) Golden Parachute Limitation. Should the payments described in this
Paragraph be considered by state or federal bank regulators to be
"golden parachute payments" as defined in 12 C.F.R. Section359, et
seq. and 12 U.S.C.S. Section 1828(k), the Bank and Corporation are
relieved from any and all liability for those payments considered to
be golden parachute
payments. (f) Nonrenewal of Agreement and Severance Allowance: In the
event the Executive serves the full term of this Agreement, and the
Bank and/or Corporation do not offer to renew this Agreement, the
Executive shall not be entitled to any severance allowance whatsoever
and the Bank and/or Corporation shall have no further obligations to
the Executive under this Agreement.
13. DAMAGES FOR BREACH OF CONTRACT/WAIVER OF JURY TRIAL. In the event of a
breach of this Agreement by either the Corporation or the Executive, each
hereby waive to the fullest extent permitted by law the right to a trial by
jury and to assert any claim against the others for punitive or exemplary
damages. Furthermore, Executive hereby waives any and all rights to assert
claims or recover damages in an amount in excess of that set forth in
Paragraph 12(b).
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14. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as
follows: If to the Executive: Xxxxxx X. Xxxxxx 000 Xxxxxxx Xxxx Xxxxxxxxxx,
XX 00000
If to the Bank: Xxxxx County National Bank
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
If to the Corporation: ACNB CORPORATION
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
or to such other address as any party may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
16. SUCCESSORS. This Agreement shall inure to the benefit of and be binding
upon the Executive, his personal representatives, heirs or assigns and to
the Bank and/or Corporation and any of successors or assigns of the Bank
and/or Corporation.
17. SEVERABILITY. If any provision of this Agreement is declared unenforceable
by a judicial or administrative body for any reason, the remaining
provisions of this Agreement shall be unaffected thereby and shall remain
in full force and effect.
18. AMENDMENT. This Agreement may be amended or canceled only by mutual
agreement of the parties in writing.
19. PAYMENT OF MONEY DUE DECEASED EXECUTIVE. In the event of Executive's death,
any moneys that may be due him from the Bank under this Agreement as of the
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date of death shall be paid to the person designated by him in writing for
this purpose or, in the absence of any such designation, to his estate.
20. LAW GOVERNING. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
21. ENTIRE AGREEMENT. This Agreement supersedes any and all agreements, either
oral or in writing, between the parties with respect to the employment of
the Executive by the Bank and/or Corporation, and this Agreement contains
all the covenants and agreements between the parties with respect to the
employment of Executive by the Bank and/or Corporation.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement to be duly executed in their respective names
and, in the case of the Corporation, by its authorized representatives the day
and year above mentioned.
ATTEST: XXXXX COUNTY NATIONAL BANK
______________________________ By _____________________________
ATTEST: ACNB CORPORATION
______________________________ By _____________________________
WITNESS:
/s/ Xxxxxx X. Xxxxxx
______________________________ ______________________________
Xxxxxx X. Xxxxxx
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