ABINGTON BANK AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.2
ABINGTON
BANK
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
This
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”), is made and
entered into as of the 28th day of November 2007, between Abington Savings
Bank,
a Pennsylvania chartered stock-form savings bank doing business as “Abington
Bank” (the “Bank”), and Xxxxxx X. Xxxxx (the “Executive”).
WITNESSETH:
WHEREAS,
the Executive is currently employed as President and Chief Executive Officer
of
the Bank, and the Executive and the Bank have previously entered into an
employment agreement dated December 29, 2006 (the “Prior
Agreement”);
WHEREAS,
the Executive is currently employed as President and Chief Executive Officer
of
Abington Bancorp, Inc., a Pennsylvania corporation (the
“Corporation”);
WHEREAS,
the Corporation and the Bank are referred to together herein as the
“Employers”;
WHEREAS,
the Bank desires to amend and restate the Prior Agreement in order to make
changes to comply with Section 409A of the Code, as well as certain other
changes;
NOW
THEREFORE, in consideration of the mutual agreements herein contained, and
upon
the other terms and conditions hereinafter provided, the Bank and the Executive
hereby agree as follows:
1. Definitions. The
following words and terms shall have the meanings set forth below for the
purposes of this Agreement:
(a) Base
Salary. “Base Salary” shall have the meaning set forth in
Section 3(a) hereof.
(b) Cause.
Termination of the Executive’s employment for “Cause” shall mean termination
because of personal dishonesty, incompetence, willful misconduct, breach
of
fiduciary duty involving personal profit, intentional failure to perform
stated
duties, willful violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease-and-desist order or material
breach of any provision of this Agreement. For purposes of this
paragraph, no act or failure to act on the part of the Executive shall be
considered “willful” unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the Executive’s action or omission
was in the best interests of the Employers.
(c) Change
in Control. “Change in Control” shall mean a change in the
ownership of the Corporation or the Bank, a change in the effective control
of
the Corporation or the Bank or a change in the ownership of a substantial
portion of the assets of the Corporation or the Bank, in each case as provided
under Section 409A of the Code and the regulations thereunder.
(d) Code. “Code”
shall mean the Internal Revenue Code of 1986, as amended.
(e) Date
of Termination. “Date of Termination” shall mean (i) if the
Executive’s employment is terminated for Cause, the date on which the Notice of
Termination is given, and (ii) if the Executive’s employment is terminated for
any other reason, the date specified in such Notice of Termination.
(f) Disability. “Disability”
shall mean the Executive (i) is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a
continuous period of not less than 12 months, or (ii) is, by reason of any
medically determinable physical or mental impairment which can be expected
to
result in death or can be expected to last for a continuous period of not
less
than 12 months, receiving income replacement benefits for a period of not
less
than three months under an accident and health plan covering employees of
the
Employers.
(g) Good
Reason. Termination by the Executive of the Executive’s
employment for “Good Reason” shall mean termination by the Executive based on
the occurrence of any of the following events:
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(i)
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any
material breach of this Agreement by the Bank, including without
limitation any of the following: (A) a material diminution in the
Executive’s base compensation, (B) a material diminution in the
Executive’s authority, duties or responsibilities, or (C) any requirement
that the Executive report to a corporate officer or employee of
the
Employers instead of reporting directly to the Boards of Directors
of the
Employers, or
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(ii)
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any
material change in the geographic location at which the Executive
must
perform his services under this
Agreement;
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provided,
however, that prior to any termination of employment for Good Reason, the
Executive must first provide written notice to the Employers within ninety
(90)
days of the initial existence of the condition, describing the existence
of such
condition, and the Employers shall thereafter have the right to remedy the
condition within thirty (30) days of the date the Employers received the
written
notice from the Executive. If the Employers remedy the condition
within such thirty (30) day cure period, then no Good Reason shall be deemed
to
exist with respect to such condition. If the Employers do not remedy
the condition within such thirty (30) day cure period, then the Executive
may
deliver a Notice of Termination for Good Reason at any time within sixty
(60)
days following the expiration of such cure period.
(h) IRS. IRS
shall mean the Internal Revenue Service.
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(i) Notice
of Termination. Any purported termination of the Executive’s
employment by the Bank for any reason, including without limitation for Cause,
Disability or Retirement, or by the Executive for any reason, including without
limitation for Good Reason, shall be communicated by a written “Notice of
Termination” to the other party hereto. For purposes of this
Agreement, a “Notice of Termination” shall mean a dated notice which (i)
indicates the specific termination provision in this Agreement relied upon,
(ii)
sets forth in reasonable detail the facts and circumstances claimed to provide
a
basis for termination of the Executive’s employment under the provision so
indicated, (iii) specifies a Date of Termination, which shall be not less
than
fifteen (15) nor more than ninety (90) days after such Notice of Termination
is
given, except in the case of the Bank’s termination of the Executive’s
employment for Cause, which shall be effective immediately, and (iv) is given
in
the manner specified in Section 11 hereof.
(j) Retirement. “Retirement”
shall mean voluntary termination by the Executive in accordance with the
Employers’ retirement policies, including early retirement, generally applicable
to their salaried employees.
2. Titles;
Term of Employment.
(a) The
Bank hereby employs the Executive as President and Chief Executive Officer
and
the Executive hereby accepts said employment and agrees to render such services
to the Bank on the terms and conditions set forth in this
Agreement. During the term of this Agreement, the Executive shall
perform such executive services for the Bank as may be consistent with his
titles and from time to time assigned to him by the Bank’s Board of
Directors. The Executive shall also keep himself up to date with and
familiar with developments in the thrift industry and attend substantially
all
of the regular monthly meetings of the Board of Directors and periodic meetings
of the various committees of the Board, as requested. He shall work at the
main
office of the Bank, as that shall be designated from time to time.
(b) The
term of employment under this Agreement shall be for three years beginning
on
the date of this Agreement and ending on the third anniversary of the date
of
this Agreement, plus such extensions, if any, as are provided below (the
“Employment Period”). Except as provided in Section 2(c), beginning
on the date of this Agreement, on each day during the Employment Period,
the
Employment Period shall automatically be extended for one additional day,
unless
either the Bank, on the one hand, or the Executive, on the other hand, elects
not to extend the Agreement further by giving written notice thereof to the
other party, in which case the Employment Period shall end on the third
anniversary of the date on which such written notice is given. Upon termination
of the Executive’s employment with the Bank for any reason whatsoever, any daily
extensions provided pursuant to this Section 2(b), if not theretofore
discontinued, shall automatically cease. Prior to December 31, 2007 and each
December 31 thereafter, the Board of Directors of the Bank shall consider
and
review (with appropriate corporate documentation thereof, and after taking
into
account all relevant factors, including the Executive’s performance hereunder)
the daily extensions of the term of this Agreement, and the Board of Directors
shall determine whether to permit such daily extensions to
continue.
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(c) Nothing
in this Agreement shall be deemed to prohibit the Bank at any time from
terminating the Executive’s employment during the Employment Period with or
without notice for any reason, provided that the relative rights and obligations
of the Bank and the Executive in the event of any such termination shall
be
determined under this Agreement.
3. Compensation
and Benefits.
(a) The
Employers shall compensate and pay the Executive for his services during
the
term of this Agreement at a minimum base salary of $295,000 per year (“Base
Salary”). The Base Salary may be increased from time to time in such amounts as
may be determined by the Boards of Directors of the Employers and may not
be
decreased without the Executive’s express written consent. In
addition to his Base Salary, the Executive shall be entitled to receive during
the term of this Agreement such bonus payments as may be determined by the
Boards of Directors of the Employers. The salary under this Section
3(a) shall be payable to the Executive not less frequently than monthly or
other
than in conformity with the Employers’ policy in relation to salaried executive
employees.
(b) During
the term of this Agreement, the Executive shall be entitled to participate
in
and receive the benefits of any pension or other retirement benefit plan,
profit
sharing, stock option, employee stock ownership, or other plans, benefits
and
privileges given to employees and executives of the Employers, to the extent
commensurate with his then duties and responsibilities, as fixed by the Boards
of Directors of the Employers. The Bank shall not make any changes in
such plans, benefits or privileges which would adversely affect the Executive’s
rights or benefits thereunder, unless such change occurs pursuant to a program
applicable to all executive officers of the Bank and does not result in a
proportionately greater adverse change in the rights of or benefits to the
Executive as compared with any other executive officer of the
Bank. Nothing paid to the Executive under any plan or arrangement
presently in effect or made available in the future shall be deemed to be
in
lieu of the salary payable to the Executive pursuant to Section 3(a)
hereof.
(c) During
the term of this Agreement, the Executive shall be entitled to paid annual
vacation in accordance with the policies as established from time to time
by the
Boards of Directors of the Employers. The Executive shall not be
entitled to receive any additional compensation from the Employers for failure
to take a vacation, nor shall the Executive be able to accumulate unused
vacation time from one year to the next, except to the extent authorized
by the
Boards of Directors of the Employers.
(d) The
Executive’s compensation, benefits and expenses payable under this Agreement
(including but not limited to Sections 3, 4 and 5 hereof) shall be paid by
the
Corporation and the Bank in the same proportion as the time and services
actually expended by the Executive on behalf of each respective Employer;
provided, however, that if the Executive devotes less than 10% of his time
to
the Corporation, such amounts shall be paid by the Bank.
4. Expenses. The
Employers shall reimburse the Executive or otherwise provide for or pay for
all
reasonable expenses incurred by the Executive in furtherance of or in connection
with the business of the Employers, including, but not by way of limitation,
automobile expenses and traveling expenses, and all reasonable entertainment
expenses, subject to such reasonable documentation and other limitations
as may
be established by the Boards of Directors of the Employers. If such
expenses are paid in the first instance by the Executive, the Employers shall
reimburse the Executive therefor. Such reimbursement shall be paid
promptly by the Employers and in any event no later than March 15 of the
year
immediately following the year in which such expenses were
incurred.
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5. Termination.
(a) General. The
Bank shall have the right, at any time upon prior Notice of Termination,
to
terminate the Executive’s employment hereunder for any reason, including without
limitation termination for Cause, Disability or Retirement, and the Executive
shall have the right, upon prior Notice of Termination, to terminate his
employment hereunder for any reason.
(b) Termination
for Cause or Voluntary Resignation. In the event that (i)
the Executive’s employment is terminated by the Bank for Cause or (ii) the
Executive terminates his employment hereunder other than for Disability,
Retirement, death or Good Reason, the Executive shall have no right pursuant
to
this Agreement to compensation or other benefits for any period after the
applicable Date of Termination.
(c) Disability
Benefits. In the event the Executive’s employment is
terminated during the Employment Period as a result of Disability, then the
Executive shall be entitled to receive annual disability benefits which are
at
least equal to 60% of his annual Base Salary as in effect immediately prior
to
his termination of employment. If the disability benefits payable to the
Executive pursuant to short-term and long-term disability policies of the
Employers, together with other insurance, retirement and medical benefits
provided by the Employers and any Social Security disability benefits provided
to the Executive, do not equal at least 60% of the Executive’s Base Salary, then
the Employers shall pay to the Executive a supplemental disability benefit
each
year equal to (i) 60% of the Executive’s Base Salary, minus (ii) the sum of (A)
the disability benefits payable to the Executive pursuant to disability policies
of the Employers, (B) the other insurance, retirement and medical benefits
provided by the Employers to the Executive, and (c) any Social Security
disability benefits provided to the Executive. The supplemental disability
benefits shall be paid to the Executive in as equal as possible monthly
installments on the first business day of each month, subject to adjustment
each
month as the amounts in clause (ii) above change, and shall be paid until
the
Executive reaches his seventieth (70th)
birthday.
(d) Death
Benefits. In the event that the Executive dies during the
Employment Period, then the Employers shall pay to his spouse (or to his
estate
if his spouse is no longer living or if he is no longer married) a lump sum
cash
payment equal to the present value of the Base Salary that would have been
paid
to the Executive for the thirty-six (36) months following the date of his
death,
based on the Base Salary in effect at the time of death. The present
value shall be calculated using a discount rate equal to the applicable federal
rate compounded monthly (determined under Section 1274(d) of the Code) as
published by the Internal Revenue Service for the month in which the date
of
death occurs.
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(e) Retirement
Benefits. In the event the Executive’s
employment is terminated during the Employment Period due to Retirement,
then
the Executive shall be entitled to benefits under any pension or other
retirement plans of the Employers covering the Executive in lieu of any payments
or other benefits under this Agreement subsequent to the date of
Retirement.
(f) Involuntary
or Good Reason Termination Prior to a Change in Control. In
the event that (i) the Executive’s employment is terminated by the Bank for
other than Cause, Disability, Retirement or the Executive’s death or (ii) such
employment is terminated by the Executive for Good Reason, in each case prior
to
a Change in Control, then the Bank shall:
(A) pay
to the Executive, in a lump sum as of the Date of Termination, a cash severance
amount equal to the product of (i) the sum of the Base Salary per year then
in
effect and the highest cash bonus paid in the prior three calendar years,
in
each case the portion thereof paid by the Bank, multiplied by (ii) three
(3),
(B) maintain
and provide for a period ending at the earlier of (i) the expiration of the
Employment Period or (ii) the date of the Executive’s full-time employment by
another employer (provided that the Executive is entitled under the terms
of
such employment to benefits substantially similar to those described in this
subparagraph (B)), with the Executive responsible for paying the same share
of
any premiums, co-payments or deductibles as if he was still an employee,
the
Executive’s continued participation in all group insurance, life insurance,
health and accident, and disability insurance coverage offered by the Bank
in
which the Executive was participating immediately prior to the Date of
Termination; provided that any insurance premiums payable by the Bank or
any
successors pursuant to this Section 5(f)(B) shall be payable at such times
and
in such amounts as if the Executive was still an employee of the Bank, subject
to any increases in such amounts imposed by the insurance company or COBRA,
and
the amount of insurance premiums required to be paid by the Bank in any taxable
year shall not affect the amount of insurance premiums required to be paid
by
the Bank in any other taxable year; and provided further that if the Executive’s
participation in any group insurance plan is barred, the Employers shall
arrange
to provide the Executive with insurance benefits substantially similar to
those
which the Executive was entitled to receive under such group insurance plan
at
no additional cost to the Executive; and
(C) pay
to the Executive, in a lump sum as of the Date of Termination, a cash amount
equal to the projected cost to the Bank of providing benefits to the Executive
for a period of twenty-four (24) months pursuant to any other employee benefit
plans, programs or arrangements offered by the Bank in which the Executive
was
entitled to participate immediately prior to the Date of Termination (other
than
cash bonus plans, retirement plans or stock compensation plans of the Bank
or
the Corporation), with the projected cost to the Bank to be based on the
costs
incurred for the calendar year immediately preceding the year in which the
Date
of Termination occurs and with any automobile-related costs to exclude any
depreciation on Bank-owned automobiles.
(g) Involuntary
or Good Reason Termination Concurrently with or Subsequent to a Change in
Control. In the event that (i) the Executive’s employment is
terminated by the Bank for other than Cause, Disability, Retirement or the
Executive’s death or (ii) such employment is terminated by the Executive for
Good Reason, in each case either concurrently with or subsequent to a Change
in
Control, then the Bank shall, subject to the provisions of Section 6 hereof,
if
applicable:
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(A) pay
to the Executive, in a lump sum as of the Date of Termination, a cash severance
amount equal to 2.99 times that portion of the Executive’s “base amount” (as
defined in Section 280G(b)(3) of the Code) paid by the Bank,
(B) maintain
and provide for a period ending at the earlier of (i) thirty-six (36) months
after the Date of Termination or (ii) the date of the Executive’s full-time
employment by another employer (provided that the Executive is entitled under
the terms of such employment to benefits substantially similar to those
described in this subparagraph (B)), with the Executive responsible for paying
the same share of any premiums, co-payments or deductibles as if he was still
an
employee, the Executive’s continued participation in all group insurance, life
insurance, health and accident, and disability insurance coverage offered
by the
Bank in which the Executive was participating immediately prior to the Date
of
Termination; provided that any insurance premiums payable by the Bank or
any
successors pursuant to this Section 5(g)(B) shall be payable at such times
and
in such amounts as if the Executive was still an employee of the Bank, subject
to any increases in such amounts imposed by the insurance company or COBRA,
and
the amount of insurance premiums required to be paid by the Bank in any taxable
year shall not affect the amount of insurance premiums required to be paid
by
the Bank in any other taxable year; and provided further that if the Executive’s
participation in any group insurance plan is barred, the Bank shall arrange
to
provide the Executive with insurance benefits substantially similar to those
which the Executive was entitled to receive under such group insurance plan
at
no additional cost to the Executive; and
(C) pay
to the Executive, in a lump sum as of the Date of Termination, a cash amount
equal to the projected cost to the Bank of providing benefits to the Executive
for a period of thirty-six (36) months pursuant to any other employee benefit
plans, programs or arrangements offered by the Bank in which the Executive
was
entitled to participate immediately prior to the Date of Termination (other
than
cash bonus plans, retirement plans or stock compensation plans of the Bank
or
the Corporation), with the projected cost to the Bank to be based on the
costs
incurred for the calendar year immediately preceding the year in which the
Date
of Termination occurs and with any automobile-related costs to exclude any
depreciation on Bank-owned automobiles.
6. Limitation
of Benefits under Certain Circumstances. If the payments and
benefits pursuant to Section 5 hereof, either alone or together with other
payments and benefits which the Executive has the right to receive from the
Employers, would constitute a “parachute payment” under Section 280G of the
Code, then the payments and benefits payable by the Bank pursuant to Section
5
hereof shall be reduced by the minimum amount necessary to result in no portion
of the payments and benefits under Section 5 being non-deductible to the
Bank
pursuant to Section 280G of the Code and subject to the excise tax imposed
under
Section 4999 of the Code. If the payments and benefits under Section
5 are required to be reduced, the cash severance shall be reduced first,
followed by a reduction in the fringe benefits. The determination of
any reduction in the payments and benefits to be made pursuant to Section
5
shall be based upon the opinion of independent tax counsel selected by the
Bank
and paid by the Bank. Such counsel shall promptly prepare the
foregoing opinion, but in no event later than ten (10) days from the Date
of
Termination, and may use such actuaries as such counsel deems necessary or
advisable for the purpose. Nothing contained herein shall result in a
reduction of any payments or benefits to which the Executive may be entitled
upon termination of employment under any circumstances other than as specified
in this Section 6, or a reduction in the payments and benefits specified
in
Section 5 below zero.
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7. Mitigation;
Exclusivity of Benefits.
(a) The
Executive shall not be required to mitigate the amount of any benefits hereunder
by seeking other employment or otherwise, nor shall the amount of any such
benefits be reduced by any compensation earned by the Executive as a result
of
employment by another employer after the Date of Termination or otherwise,
except as set forth in Sections 5(f) and (g) above.
(b) The
specific arrangements referred to herein are not intended to exclude any
other
benefits which may be available to the Executive upon a termination of
employment with the Employers pursuant to employee benefit plans of the
Employers or otherwise.
8. Withholding. All
payments required to be made by the Bank hereunder to the Executive shall
be
subject to the withholding of such amounts, if any, relating to tax and other
payroll deductions as the Bank may reasonably determine should be withheld
pursuant to any applicable law or regulation.
9. Standards
and Non-Competition. The Executive shall perform the
Executive’s duties and responsibilities under this Agreement in accordance with
such reasonable standards as may be established from time to time by the
Board
of Directors of the Bank. The reasonableness of such standards shall be measured
against standards for executive performance generally prevailing in the thrift
industry. The Executive agrees that during the term of his employment hereunder,
except with the express consent of the Employers, he will not, directly or
indirectly, engage or participate in, become a trustee or director of, or
render
advisory or other services for any other firm, corporation, business entity
or
business enterprise that accepts deposits from the public or makes loans
to the
public (a “Competing Business”), provided, however, that the Executive shall not
be precluded or prohibited from owning passive investments in any Competing
Business so long as such ownership does not require him to devote time to
or
participate in the management of the business in which he has invested. If
the
Executive’s employment is terminated by the Executive without Good Reason or by
the Employers for Cause, then the Executive shall not become an officer,
employee, director, trustee or partner of or render services to any Competing
Business (except for passive investments of less than 5% of the Competing
Business) which accept deposits and/or makes loans to the public within the
marketing area of the Employers as it exists at the time of the Executive’s
termination for a period of two (2) years following such termination of
employment; and if the Executive is employed by a Competing Business which
opens
an office and/or extends its operations into the prohibited marketing area
of
the Employers within two (2) years following the Executive’s termination of
employment with the Employer, he must terminate his employment with the
Competing Business until the two (2) year period has expired. Notwithstanding
anything to the contrary contained herein, during the term of this Agreement,
the Executive shall have no employment contract or other written or oral
agreement concerning employment as an officer or employee with any entity
or
person other than the Employers. Nothing contained in this Agreement shall
in
any way restrict the right of the Executive to serve as a director, officer,
trustee or in any similar capacity with respect to any not-for-profit
organization, any fraternal organization or any church or religious
organization, or as a trustee or fiduciary with respect to any trust, will
or
estate. The Employers’ marketing area is each county in which the
Bank actively solicits deposits and mortgage loans. This Section 9
shall not be applicable if the Executive’s employment is terminated following a
Change in Control for any reason other than for Cause.
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10. Assignability. The
Bank may assign this Agreement and its rights and obligations hereunder in
whole, but not in part, to any corporation, bank or other entity with or
into
which the Bank may hereafter merge or consolidate or to which the Bank may
transfer all or substantially all of its assets, if in any such case said
corporation, bank or other entity shall by operation of law or expressly
in
writing assume all obligations of the Bank hereunder as fully as if it had
been
originally made a party hereto, but may not otherwise assign this Agreement
or
its rights and obligations hereunder. The Executive may not assign or
transfer this Agreement or any rights or obligations hereunder.
11. Notice. For
the purposes of this Agreement, notices and all other communications provided
for in this Agreement shall be in writing and shall be deemed to have been
duly
given when delivered or mailed by certified or registered mail, return receipt
requested, postage prepaid, addressed to the respective addresses set forth
below:
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To
the Corporation:
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Secretary
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Abington
Bancorp, Inc.
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000
Xxx Xxxx Xxxx
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Xxxxxxxxxx,
Xxxxxxxxxxxx 00000
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To
the Bank:
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Secretary
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Abington
Savings Bank
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000
Xxx Xxxx Xxxx
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Xxxxxxxxxx,
Xxxxxxxxxxxx 00000
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To
the Executive:
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Xxxxxx
X. Xxxxx
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At
the address last appearing on the personnel records of the
Employers
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12. Amendment;
Waiver. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed
to
in writing signed by the Executive and such officer or officers as may be
specifically designated by the Board of Directors of the Bank to sign on
its
behalf. No waiver by any party hereto at any time of any breach by
any other party hereto of, or compliance with, any condition or provision
of
this Agreement to be performed by such other party shall be deemed a waiver
of
similar or dissimilar provisions or conditions at the same or at any prior
or
subsequent time. In addition, notwithstanding anything in this
Agreement to the contrary, the Bank may amend in good faith any terms of
this
Agreement, including retroactively, in order to comply with Section 409A
of the
Code.
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13. Governing
Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the United
States
where applicable and otherwise by the substantive laws of the Commonwealth
of
Pennsylvania.
14. Invalidity;
Enforceability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability
of
any other provision of this Agreement, which shall remain in full force and
effect. Any provision in this Agreement which is prohibited or unenforceable
in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating or affecting
the remaining provisions hereof, and any such prohibition or unenforceability
in
any jurisdiction shall not invalidate or render unenforceable such provision
in
any other jurisdiction.
15. Arbitration. Any
controversy or claim arising out of or relating to this Agreement, or the
breach
thereof, shall be settled by arbitration in accordance with the rules then
in
effect for the American Arbitration Association, Philadelphia, Pennsylvania,
and
judgment upon the award rendered may be entered in any court having jurisdiction
thereof.
16. Nature
of Obligations. Nothing contained herein shall create or
require the Bank to create a trust of any kind to fund any benefits which
may be
payable hereunder, and to the extent that the Executive acquires a right
to
receive benefits from the Bank hereunder, such right shall be no greater
than
the right of any unsecured general creditor of the Bank.
17. Headings. The
section headings contained in this Agreement are for reference purposes only
and
shall not affect in any way the meaning or interpretation of this
Agreement.
18. Changes
in Statutes or Regulations. If any statutory or regulatory
provision referenced herein is subsequently changed or re-numbered, or is
replaced by a separate provision, then the references in this Agreement to
such
statutory or regulatory provision shall be deemed to be a reference to such
section as amended, re-numbered or replaced.
19. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original but all of which together will constitute one and
the
same instrument.
20. Regulatory
Prohibition. Notwithstanding any other provision of this
Agreement to the contrary, any payments made to the Executive pursuant to
this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with Section 18(k) of the FDIA (12 U.S.C. §1828(k)) and 12 C.F.R. Part
359.
21. Payment
of Costs and Legal Fees and Reinstatement of Benefits. In
the event any dispute or controversy arising under or in connection with
the
Executive’s termination is resolved in favor of the Executive, whether by
judgment, arbitration or settlement, the Executive shall be entitled to the
payment of (a) all legal fees incurred by the Executive in resolving such
dispute or controversy, and (b) any back-pay, including Base Salary, bonuses
and
any other cash compensation, fringe benefits and any compensation and benefits
due to the Executive under this Agreement, within thirty (30) days following
the
date such judgment, arbitration or settlement becomes final and
non-appealable.
10
22. Entire
Agreement. This Agreement embodies the entire agreement
between the Bank and the Executive with respect to the matters agreed to
herein. All prior agreements between the Bank and the Executive with
respect to the matters agreed to herein, including but not limited to the
Prior
Agreement, are hereby superseded and shall have no force or
effect. Notwithstanding the foregoing, nothing contained in this
Agreement shall affect the agreement of even date being entered into between
the
Corporation and the Executive.
[Signature
page follows]
11
IN
WITNESS WHEREOF, this Agreement has been executed as of the date first written
above.
THIS
AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED
BY THE
PARTIES.
|
Attest:
|
ABINGTON
SAVINGS BANK
|
|||
| /s/ Xxxxx Xxxxxxxxxx |
By:
|
/s/ Xxxxxx X. Xxxxxxxxxxx, Xx. | ||
| Name: |
Xxxxxx
X. Xxxxxxxxxxx, Xx.
|
|||
| Title: |
Director
|
|||
|
EXECUTIVE
|
|||
|
By:
|
/s/ Xxxxxx X. Xxxxx | ||
|
Xxxxxx
X. Xxxxx
|
|||
12
