June 6, 2007
EXHIBIT
10.1
June
6,
2007
F.
Xxxxx
Xxxxx
0000
Xxxxx Xxxx
Xxxxxxxx,
Xxx Xxxxxx 00000
Dear
Xx.
Xxxxx:
In
connection with the anticipated merger (the “Merger”) by and between The PNC
Financial Services Group, Inc. (the “Parent”) and Yardville National Bancorp
(the “Company”), as contemplated by the Agreement and Plan of Merger, dated even
with the date hereof, by and among the Parent and the Company (the “Merger
Agreement”), the Company, PNC Bank, National Association (“PNC Bank”), and you
hereby enter into this Employment and Retention Agreement (this
“Agreement”).
The
parties hereto agree and acknowledge that Section 9 of this Agreement shall
become immediately effective upon the execution of this Agreement and all other
provisions of this Agreement shall become effective only as of the Effective
Time (as defined in the Merger Agreement). In the event that the
Effective Time does not occur for any reason, this Agreement shall be deemed
null and void ab initio and of no force and effect, and the Employment
Agreement between you, the Company and Yardville National Bank, a subsidiary
of
the Company, dated as of September 28, 2004 (the “Prior Agreement”) shall be
reinstated effective immediately.
1. Employment
Period. PNC Bank (or any of its affiliates, as determined by PNC
Bank) shall employ you, and you shall serve PNC Bank, on the terms and
conditions set forth in this Agreement, for a period (the “Employment Period”)
commencing on the date (the “Effective Date”) on which occurs the Effective Time
and ending on the third anniversary of the Effective Date, unless sooner
terminated in accordance with this Agreement.
2. Position/Duties. During
the Employment Period, you shall serve as Regional President of Xxxxxx and
Huntington Counties in New Jersey of PNC Bank with responsibilities for the
integration of the Company with PNC Bank. You shall devote your full
working time, energy and attention to the business of PNC Bank and its
affiliates during the Employment Period. You shall initially report
directly to Xxxxx X. Xxxxxxx, which reporting relationship shall be subject
to
change from time to time in the sole discretion of PNC Bank. Unless
otherwise mutually agreed to by you and PNC Bank, your place of employment
will
be within 50 miles from Hamilton, New Jersey. This Agreement shall
not, however, preclude you from investing or supervising the investment of
your
personal assets (including, without limitation, financial investments) in such
form and manner as will not conflict with your duties and responsibilities
under
this Agreement or the Parent’s Code of Business Conduct and Ethics and its
Employee Conduct Policies. Other than as expressly provided herein
you will not, during the Employment Period, engage in any other business
activity.
3. Compensation
and Benefits.
(a) Restricted
Stock. As of January 2, 2008, subject to the approval of the
Personnel and Compensation Committee of the Board of Directors of Parent, in
full settlement of any and all obligations and liabilities under the Company’s
Second Amended and Restated Supplemental Executive Retirement Plan as in effect
as of the Effective Date and in consideration for your services to be rendered
to PNC Bank and its affiliates after the Effective Date and the restrictive
covenants set forth herein, you will be granted a whole number of restricted
shares of Parent common stock equal to the amount (the “Restricted Share Value”)
set forth on Exhibit A divided by the average of the reported high and
low trading prices on the New York Stock Exchange for a share of Parent common
stock on January 2, 2008 (the “Restricted Shares”). The Restricted Shares shall
vest and no longer be subject to restriction on the third anniversary of the
Effective Date, subject to your continued employment through such date and
Section 5 of this Agreement. Except as otherwise provided in this
Agreement, the terms of the Restricted Shares shall be consistent with the
terms
of the Parent 2006 Incentive Award Plan (as amended from time to time) and
award
agreements thereunder and your grant under this Section 3(a) shall be subject
to
your execution of such an award agreement. In the event that the
Personnel and Compensation Committee of the Board of Directors of Parent fail
to
approve such Restricted Shares grant, the applicable Restricted Share Value
shall instead be paid to you in cash as soon as practicable following January
2,
2008, but in no event later than January 7, 2008.
(b) Restrictive
Covenant Payment. In consideration for your agreeing to the
covenant not to compete set forth in Section 6(d) of this Agreement and subject
to your continued compliance therewith, on January 2, 2008, the Parent shall
pay
you a lump sum payment in cash in the amount set forth on Exhibit A (the
“Restrictive Covenant Payment”). For the avoidance of doubt, and
notwithstanding anything herein to the contrary, the Restrictive Covenant
Payment shall not be taken into account in computing any benefits under any
plan, program or arrangement of the Parent, the Company or their
affiliates.
(c) Base
Salary. During
the Employment Period, you shall receive an annual base salary (“Annual Base
Salary”) at a rate of not less than the amount set forth on Exhibit
A. The Annual Base Salary shall be payable in accordance with PNC
Bank’s regular payroll practice for its senior executives, as in effect from
time to time.
(d) Annual
Bonus; Equity
Compensation. With respect to each fiscal year ending during the
Employment Period, you shall be eligible to earn an annual bonus on terms and
conditions as PNC Bank shall determine from time to time, subject to the
achievement of performance targets with respect to PNC Bank’s performance and
your individual performance, as determined by PNC Bank in its discretion;
provided, however, that the annual bonus payable with respect to the fiscal
year
ending December 31, 2007 shall in no be less than 40% of your target bonus
for
2007, it being acknowledged that your target bonus for 2007 is 35% of your
Annual Base Salary. In addition, it is intended that you will be
eligible for an annual evaluation to receive a grant of equity-based
compensation for which similarly situated employees of PNC Bank are eligible
under any plan or program now in effect or later established by PNC Bank on
the
same basis as similarly situated employees of PNC Bank.
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(e) Vacation. During
the Employment Period, you shall be eligible to accrue the same number of weeks
of paid vacation in each year of employment under this Agreement as that
provided to similarly situated executives of PNC Bank (with service credited
to
you based on your prior employment with the Company and its affiliates, which
began on October 1, 2004), which must be used in the year accrued or else it
shall be forfeited.
(f) Expense
Reimbursement. During the Employment Period, you shall be
eligible for reimbursement by PNC Bank for the reasonable and necessary business
expenses incurred by you in the discharge of your duties (including, without
limitation, reimbursement for automobile mileage based on PNC Bank’s expense
reimbursement policies), subject to PNC Bank’s standard policies and procedures
related to expense reimbursement and approval thereof.
(g) Benefits. During
the Employment Period, you shall be eligible to participate in such benefit
plans as are from time to time made generally available to similarly situated
executives of PNC Bank, in accordance with the terms thereof. PNC
Bank shall give you full credit for purposes of eligibility, vesting and benefit
accruals under any employee benefit plans, programs, or arrangements maintained
by PNC Bank or any affiliate of PNC Bank (other than any defined benefit pension
plan, retiree life insurance plan and, subject to the following sentence, any
retiree medical plan) for your service with the Company or any subsidiary of
the
Company (or any predecessor entity) to the same extent recognized by the Company
and its subsidiaries, except as may result in duplication of
benefits.
(h) Special
Payment. On
January 2, 2008, the Company or PNC Bank shall pay to you in a lump sum a cash
amount equal to $166,667 (the “Special Payment”).
(i) Automobile
Lease. You shall be entitled to the continued use of the
company-leased automobile that you currently drive, as of the date immediately
prior to the execution of this Agreement, for the remainder of the lease period
and PNC Bank shall pay for or reimburse you for all lease payments and shall
pay
for or provide reimbursement for all other related expenses under the current
automobile lease arrangement as of the date immediately prior to the execution
of this Agreement. At the end of the lease period, you shall be
entitled to purchase the automobile at the lease-stated purchase
price.
4. Termination
of Employment.
(a) Cause. PNC
Bank may terminate your employment with or without Cause by written notice
to
you. For purposes of this Agreement, “Cause” shall mean, in the good
faith determination of PNC Bank, (i) your gross negligence or willful misconduct
in the course of your employment hereunder; (ii) your commission of fraud
against PNC Bank or its affiliates or its customers, clients or employees,
(iii)
your commission of any theft or misappropriation of assets or business
opportunities of PNC Bank or its affiliates, (iv) any breach of your fiduciary
duty owed to PNC Bank or its affiliates, (v) your commission of any felony
or
act of moral turpitude, in either case, which could reasonably be expected
to
have a material adverse effect on PNC Bank or its affiliates; (vi) a material
violation by you of the Parent’s Code of Business Conduct and Ethics or its
Employee Conduct Policies, unless not reasonably applicable to you as an
employee; (vii) a material breach of your obligations contained in this
Agreement, including your intentional failure or refusal to perform your duties
hereunder; or (viii) the entry of any
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order
against you by any government body having regulatory authority with respect
to
the business of PNC Bank or its affiliates for a violation by you of any rule
or
regulation governing the business of PNC Bank or its affiliates; provided,
however, that prior to being given written notice of your termination hereunder
for Cause under (vi) or (vii) hereof, if curable, you shall be given thirty
days’ advance notice that PNC Bank or its affiliates believe you are in
violation of such provision(s), during which time you may seek to cure your
acts
and/or omissions and, to the extent such actions or omissions are cured within
such period, such acts or omissions shall not constitute Cause.
(b) Death/Disability.
Your employment shall terminate automatically upon your death. PNC
Bank shall be entitled to terminate your employment because of your Disability
during the Employment Period. “Disability” means that you are
entitled to receive either long-term disability benefits under PNC Bank’s group
long-term disability plan or Social Security disability benefits. A
termination of your employment by PNC Bank for Disability shall be communicated
to you by written notice, and shall be effective on the 30th day after receipt
of such notice by you (the “Disability Effective Date”), unless you return to
full-time performance of your duties before the Disability Effective
Date.
(c) Date
of Termination. The “Date of Termination” means the date of your
death, the Disability Effective Date, or the date on which the termination
of
your employment by PNC Bank with or without Cause is effective, as the case
may
be.
5. Effects
of Termination of Employment.
(a) Without
Cause. In the event of (i) the termination of your employment by
PNC Bank without Cause (other than for death or Disability) during the
Employment Period or (ii) your resignation because of a material breach by
PNC
Bank or its affiliates of a provision of this Agreement (provided, that
before
resigning due to such a material breach: (A) you shall provide
the Company written notice that identifies the material breach that you believe
PNC Bank or its affiliate has made, and (B) solely with respect to material
breaches for which remedial action is possible, PNC Bank or its affiliate shall
have failed to remedy such event or condition within 30 days after PNC Bank
receives the written notice from you described in clause (A)), and subject
to
execution and non-revocation of the release agreement referred to below and
your
compliance with the restrictive covenants set forth in this Agreement, you
shall
be entitled to, within ten (10) days after the Date of Termination (1) payment
of the Accrued Obligations, (2), payment of an amount equal to the value of
the
portion of your Annual Base Salary from the Date of Termination through the
end
of the Employment Period (assuming no such termination had occurred) that has
not yet been paid, (3) to the extent not paid, the Restrictive Covenant Payment
and the Special Payment, (4) if such termination is (x) prior to the grant
of
the Restricted Shares, an amount in cash equal to the Restricted Share Value
and
(y) on or after the grant of the Restricted Shares, immediate vesting effective
as of the date immediately preceding the Date of Termination of any of the
Restricted Shares that are unvested as of such date, and (5) the Other
Benefits. In addition, in the event of (i) the termination of your
employment by PNC Bank without Cause (other than for death or Disability) during
the Employment Period or (ii) your resignation because of a material breach
by
PNC Bank or its affiliates of a provision of this Agreement that is not cured,
as provided above, you shall be entitled to continued participation in the
medical, dental and life insurance plans that you were
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participating
in immediately prior to such termination for a period equal to the greater
of
(x) the number of days left in the Employment Period immediately prior to such
termination or (y) twelve (12) months. For purposes of this
Agreement, “Accrued Obligations” shall mean the sum of (I) your Annual Base
Salary through the Date of Termination to the extent not theretofore paid,
(II) any business expenses incurred by you that are reimbursable pursuant
to this Agreement but have not been reimbursed by PNC Bank as of the Date of
Termination and (III) to the extent required by applicable law, any vacation
pay
for accrued, but unused vacation. For purposes of this Agreement,
“Other Benefits” shall mean all vested benefits and all other benefits that you
are otherwise entitled to receive upon or subsequent to the Date of Termination
under any plan, policy, practice or program of or any other contract or
agreement with PNC Bank or its affiliates, to the extent payment of such Other
Benefits is permitted by law; provided, however, that you will not be
eligible to participate in PNC Bank’s Displaced Employee Assistance Plans during
the Employment Period—this Agreement providing benefits in lieu
thereof. In order to be eligible to receive the payments and benefits
set forth in this Section 5(a), you shall execute and not revoke a release
substantially in the form attached hereto as Exhibit B (the “Release”) in a form
provided to you by PNC Bank and excluding claims to payments due to you under
this Agreement; provided, that such release shall not provide for the increase
of any post-termination obligations applicable to you pursuant to Section 6
hereof. Except as specifically provided herein, no other compensation
or benefits will be due or payable to you in connection with such
termination.
(b) Death/Disability. In
the event of the termination of your employment by reason of your death or
Disability, you shall be entitled to (i) the Accrued Obligations, (ii) the
Other
Benefits, (iii) immediate vesting as of the Date of Termination of any of the
Restricted Shares that remain unvested as of the Date of Termination and (iv)
to
the extent not paid, the Restrictive Covenant Payment. Except as
specifically provided herein, no other compensation contemplated by this
Agreement will be due or payable to you in connection with such
termination.
(c) Termination
for Cause/Resignation. In the event of the termination of your
employment by PNC Bank for Cause or your voluntary resignation (other than
pursuant to Section 5(a)(ii) of this Agreement) during the Employment Period,
you shall be entitled to, (i) within ten (10) days after the Date of
Termination, the Accrued Obligations and (ii) the Other
Benefits. Except as specifically provided herein, no additional
compensation contemplated by this Agreement will be due or payable to you in
connection with such termination.
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6.
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Restrictive
Covenants and Confidentiality.
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(a) Conflicts
of Interest. You and PNC Bank have entered into this Agreement
in significant part because of your knowledge, experience and expertise
pertaining to the Company and its affiliates. During your employment
by the Company you have had direct and indirect access to a significant amount
of confidential and proprietary information of the Company and its customers
that is being acquired by the Parent and its affiliates. In addition,
during the Employment Period, you will have access to and will accumulate
significant knowledge of the confidential and proprietary information of PNC
Bank and its affiliates and their customers. You agree that it is
reasonable and necessary to protect the interest of PNC Bank and its affiliates
in such confidential and proprietary information, and that to do so
you
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promise
that you will not, during the period from the Effective Date until the earlier
of the (i) first anniversary of the Date of Termination and (ii) the fourth
anniversary of the Effective Time (the “Restricted Period”), engage in any
employment, enterprise or activity that would present a real or perceived
conflict of interest with your obligations to advise PNC Bank and its
affiliates, assist them in growing their presence and business in the Hamilton,
New Jersey metropolitan area and/or protecting, preserving and avoiding even
the
inadvertent use or disclosure, or the perception of your use or disclosure,
of
PNC Bank’s, the Company’s or their respective affiliates’ confidential and/or
proprietary information.
(b) Nonsolicitation
of Employees/Clients. You agree that during the Restricted
Period you shall not, directly or indirectly, either for your own benefit or
purpose or for the benefit or purpose of any person or entity other than PNC
Bank or its affiliates, solicit, call on, do business with, or actively
interfere with any of their relationships with, or attempt to divert or entice
away, any person or entity that you should reasonably know (i) is or was a
customer for which PNC Bank or its affiliates provided services during or as
of
the end of the Employment Period, or (ii) is or was, as of the end of the
Employment Period, considering retention of PNC Bank and/or any of its
affiliates to provide services.
(c) No-hire. You
agree that during the Restricted Period you shall not, directly or indirectly,
either for your own benefit or purpose or for the benefit or purpose of any
person or entity other than PNC Bank or its affiliates, employ or offer to
employ, call on, or actively interfere with PNC Bank’s or its affiliates’
relationship with, or attempt to divert or entice away, any of their employees,
nor shall you assist any other person or entity in such activities.
(d) Non-competition. You
agree that during the period from the Effective Date until the earlier of the
(i) second anniversary of the Date of Termination and (ii) the fifth anniversary
of the Effective Time, you shall not without the written consent of PNC Bank
serve as an officer, director or employee of any bank holding company, bank,
savings association, savings and loan holding company, or mortgage company
which
offers products or services competing with those offered by the Parent or PNC
Bank from any office within fifty (50) miles from the main office or any branch
of PNC Bank.
(e) Confidentiality. You
shall hold for the benefit of PNC Bank and its affiliates and shall not disclose
to others, copy, use, transmit, reproduce, summarize, quote or make commercial,
directly or indirectly, any secret or confidential information, knowledge or
data relating to PNC Bank and its affiliates and their businesses (including
without limitation information about their respective clients and customers
and
their proprietary knowledge and trade secrets, software, technology, research,
secret data, customer lists, investor lists, business methods, business plans,
training materials, operating procedures or programs, pricing strategies,
employee lists and other business information) that you have obtained during
your employment by PNC Bank, provided, however, that the foregoing
shall not apply to information that is generally known to the public other
than
as a result of the breach of this Agreement by you or one of your
representatives (“Confidential Information”). You acknowledge that
such Confidential Information is specialized, unique in nature and of great
value to PNC Bank and its affiliates and that such information gives PNC Bank
and its affiliates a competitive advantage. Upon termination of your
employment, you shall surrender immediately to PNC Bank, except
as
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specifically
provided otherwise herein, all Confidential Information and all other property
of PNC Bank and its affiliates in your possession and all property made
available to you in connection with your employment by PNC Bank, including,
without limitation, any and all other records, manuals, customer and client
lists, notebooks, files, papers, computers, computer programs, computer discs,
lists, data, cellular phones, two-way pagers, palm-held electronic devices,
electronically stored information and all other documents (and all copies
thereof) held or made by you. Notwithstanding the foregoing
provisions, if you are required to disclose any such Confidential Information
pursuant to applicable law or a subpoena or court order, you shall promptly
notify PNC Bank in writing of any such requirement so that PNC Bank and/or
its
affiliate(s) may seek an appropriate protective order or other appropriate
remedy or waive compliance with the provisions hereof. You shall
reasonably cooperate with PNC Bank to obtain such protective order or other
remedy. If such order or other remedy is not obtained prior to the
time that you are required to make the disclosure, or PNC Bank waives compliance
with the provisions hereof, you shall disclose only that portion of the
confidential or proprietary information that you are advised by counsel that
you
are legally required to so disclose.
7. Enforcement
Provisions. You and PNC Bank understand and agree to
the following provisions regarding enforcement of this Agreement.
(a). Governing
Law and Jurisdiction. This Agreement is governed by
and is to be construed under the laws of the Commonwealth of Pennsylvania,
without regard to conflict of laws rules. Any dispute or claim
arising out of or relating to this Agreement or claim of breach hereof shall
be
brought exclusively in the Federal court in the State of New
Jersey. By execution of the Agreement, you, the Company and PNC Bank,
and their respective affiliates, consent to the exclusive jurisdiction of such
court, and waive any right to challenge jurisdiction or venue in such court
with
regard to any suit, action, or proceeding under or in connection with the
Agreement. Each party to this Agreement also hereby waives any right
to trial by jury in connection with any suit, action or proceeding under or
in
connection with this Agreement.
(b). Equitable
Remedies. A breach of Section 6 of this Agreement
will cause PNC Bank and/or its affiliates irreparable harm, and PNC Bank and
its
affiliates will therefore be entitled to seek (in addition to any monetary
damages available to them) the issuance of immediate, as well as permanent,
injunctive relief restraining you, and each and every person and entity acting
in concert or participating with you, from initiation and/or continuation of
such breach.
(c). Tolling
Period. If it becomes necessary or desirable for PNC Bank and/or
its affiliates to seek compliance with any provision of Section 6 of this
Agreement by legal proceedings, the period during which you will be
required to comply with each such provision shall be tolled during any period
of
violation of any of the covenants in Section 6 hereof and during any other
period required for litigation during which PNC Bank seeks to enforce such
covenants against you if it is ultimately determined that you were in breach
of
such covenants.
(d). No
Waiver of Terms. Failure of you or PNC Bank or its affiliates to
demand strict compliance with any of the terms, covenants or conditions of
this
Agreement shall not be deemed a waiver of such term, covenant or condition,
nor
shall any waiver or
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relinquishment
of any such term, covenant or condition on any occasion or on multiple occasions
be deemed a waiver or relinquishment of such term, covenant or
condition.
(e). Severability. The
restrictions and obligations imposed by Section 6 of this Agreement are separate
and severable, and it is the intent of you and PNC Bank that if any restriction
or obligation imposed by any of the provisions of Section 6 of this Agreement
is
deemed by a court of competent jurisdiction to be void for any reason
whatsoever, the remaining provisions, restrictions and obligations of Section
6
of this Agreement shall remain valid and binding upon you. You and
PNC Bank further agree that each provision of this Agreement shall be severable
from every other provision of this Agreement for the purpose of determining
the
legal enforceability of any specific provision. In the event that any
provision of this Agreement is deemed invalid or unenforceable under applicable
law, all other provisions of this Agreement shall remain in full force and
effect.
(f). Reform. In
the event any part of Section 6 of this Agreement is determined by a court
of
competent jurisdiction to be unenforceable, it is the intent of you and PNC
Bank
that said court reduce and reform the provisions thereof so as to apply the
greatest limitations considered enforceable by the court.
(g). Waiver
of Right to Trial By Jury. You and PNC Bank hereby waive any
right to trial by jury with regard to any suit, action or proceeding under
or in
connection with this Agreement.
8. Application
of Policies. Except as specifically modified by this Agreement,
during the Employment Period, the general personnel policies and practices
of
PNC Bank and its affiliates (as such policies may exist from time to time),
including but not limited to the Parent’s Code of Business Conduct and Ethics
and its Employee Conduct Policies, will apply to you with the same force and
effect as to any other employee of PNC Bank.
9. Termination
of the Prior Agreement; Agreement to Remain Employed with the Company Through
the Effective Time. Except as otherwise set forth herein, you
hereby agree that, in consideration for entering into this Agreement, effective
as of the Effective Time, the Prior Agreement shall be null and void and no
person or entity shall be obligated to pay to you or any person any amounts
in
respect of the Prior Agreement. Further, in consideration of the
benefits conferred upon you and the Company pursuant to this Agreement, you
hereby agree not to terminate your employment with the Company or any of its
subsidiaries prior to the Effective Time, and, prior to the Effective Time,
the
Company agrees not to terminate your employment with the Company or its
subsidiaries without the prior written consent of PNC Bank.
10. Taxes. The
Company and PNC Bank will withhold and deposit all Federal, state and local
income and employment taxes that are owed with respect to all amounts paid
or
benefits provided to or for you by the Company, PNC Bank or any of their
respective affiliates pursuant to this Agreement. You, the Company
and PNC Bank agree that none of the payments and benefits payable or provided
to
you or for your benefit in connection with the Merger are intended to constitute
an “excess parachute payment” within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the “Code”). However,
notwithstanding anything to the contrary contained in this Agreement or the
Prior Agreement, in the event that the
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aggregate
payments or benefits to be made or afforded to you under this Agreement or
otherwise (the “Payments”) do constitute an “excess parachute payment” under
Section 280G of the Code, you shall be entitled to an amount equal to the
Gross-Up Payment (as defined in Section 15 of your Prior Agreement) in
accordance with and subject to the terms and conditions set forth in Section
15
of your Prior Agreement; provided, however, if the aggregate value
of the Payments are less than or equal to the sum of (i) $75,000 plus (ii)
three
(3) times your “base amount,” as determined in accordance with Section 280G of
the Code, in lieu of payment of the Gross-Up Payment, the Payments will instead
be reduced to an amount such that the value of such Payments shall be equal
to
three (3) times your “base amount,” as determined in accordance with Section
280G of the Code, less $5,000.00. You hereby agree to report any
amounts paid or benefits provided under this Agreement for purposes of Federal,
state and local income, employment and excise taxes consistent with the good
faith manner in which PNC Bank or its affiliates reports any such amounts or
benefits for purposes of Federal, state and local income, employment and excise
taxes and that you shall cooperate with PNC Bank and/or its affiliates in good
faith in connection with any valuation of the restrictions and obligations
under
this Agreement.
11. Compliance
with Internal Revenue Code Section 409A. If PNC Bank determines
that any compensation provided by this Agreement may result in the application
of Section 409A of the Code, it may, without your consent, modify this Agreement
to the extent and in the manner it deems necessary or advisable in order to
exclude such compensation from the definition of “deferred compensation” within
the meaning of such Section 409A or in order to comply with the provisions
of
Section 409A, other applicable provision(s) of the Code and/or any rules,
regulations or other regulatory guidance issued under such statutory provisions;
provided, however, that in no event shall any modification
pursuant to this Section 11 reduce the economic benefits payable to you without
your prior written consent.
12. Survival
of Certain Provisions of Prior Agreement. Notwithstanding
anything herein to the contrary, Section 13 (Indemnification and Liability
Insurance) and, with respect to Sections 3(a), 3(b) and 3(h) of this Agreement
only, Section 14 (Reimbursement of your Expenses to Enforce this Agreement)
of
your Prior Agreement shall remain in full force and effect in accordance with
its terms.
13. Successors. This
Agreement is personal to you and without the prior written consent of PNC Bank
shall not be assignable by you otherwise than by will or the laws of descent
and
distribution. This Agreement shall inure to the benefit of and be
enforceable by your legal representatives. This Agreement shall inure
to the benefit of and be binding upon the Company (prior to the Effective Date),
PNC Bank and their respective successors and assigns.
14. Entire
and Final Agreement. This Agreement shall supersede any and all
prior oral or written representations, understandings and agreements of the
parties with respect to their employment relationship (including, but not
limited to all correspondence, memoranda and term sheets and the Prior
Agreement), and it contains the entire agreement of the parties with respect
to
those matters. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made
by
either party that are not set forth expressly in this Agreement. Once
signed by the parties hereto, no provision of this Agreement
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may
be
modified or amended unless agreed to in a writing, signed by you and a duly
authorized officer of the Company (prior to the Effective Date, it being
understood that after the Effective Time, no signature from the Company shall
be
required) and PNC Bank.
15. Assignment. Neither
this Agreement nor any of the rights, obligations or interests arising hereunder
may be assigned by you. Neither this Agreement nor any of the rights,
obligations or interests arising hereunder may be assigned by the Company or
PNC
Bank without your prior written consent, to a person or entity other than an
affiliate or parent entity of the Company or PNC Bank, or their successors
or
assigns; provided, however, that, in the event of the merger,
consolidation, transfer or sale of all or substantially all of the assets of
the
Company or PNC Bank with or to any other individual or entity, this Agreement
shall, subject to the provisions hereof, be binding upon and inure to the
benefit of such successor and such successor shall discharge and perform all
the
promises, covenants, duties and obligations of the Company or PNC Bank
hereunder.
16. Section
Headings. The section headings contained in this Agreement are
inserted for purposes of convenience only, and shall not affect the meaning
or
interpretation of this Agreement.
176. Notices. All
notices required by this Agreement shall be sent in writing and delivered by
one
party to the other by overnight express mail to the following persons and
addresses:
If
to the
Company:
0000
Xxxxx Xxxx
Xxxxxxxx,
Xxx Xxxxxx 00000
Attention: General
Counsel
With
a
copy to the Parent.
If
to PNC
Bank:
PNC
Bank,
National Association
One
PNC
Plaza
000
Xxxxx
Xxxxxx
Xxxxxxxxxx,
Xxxxxxxxxxxx 00000
Attention: General
Counsel
Telecopy
No.: (000) 000-0000
If
to
you:
At
the
most recent address on file with the Company (if prior to the Effective Time)
or
with PNC Bank (if after the Effective Time).
-10-
With
a
copy to:
Xxxxx
X.
Xxxxxxxx, Esq
Xxxxxxx
Xxxx & Xxxxxxxxx LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
18. Execution
in Counterparts. This Agreement may be executed by the parties
hereto in counterparts, each of which shall be considered an original for all
purposes.
-11-
If
the
foregoing is satisfactory, please so indicate by signing and returning to the
Company and PNC Bank the enclosed copy of this letter, whereupon this will
constitute our agreement on the subject.
| Yardville National Bancorp | ||
|
By:
|
/s/ Xxxxxxx X. Xxxx | |
|
Name:
|
Xxxxxxx X. xxxx, CEO | |
|
Date:
|
June 6, 2007 | |
| PNC Bank, National Association | ||
|
By:
|
/s/ Xxxxx X. Xxxxxxxx | |
|
Name:
|
Xxxxx
X. Xxxxxxxx
|
|
|
Date:
|
June 6, 2007 | |
ACCEPTED
AND AGREED TO:
| By: | /s/ F. Xxxxx Xxxxx |
|
Employee:
|
F.
Xxxxx Xxxxx
|
|
Date:
|
June 6, 2007 |
-12-
EXHIBIT
A
|
Restricted
Share Value
|
$2,450,000
|
|
Restrictive
Covenant Payment:
|
$1,600,000
|
|
Annual
Base Salary:
|
$330,750
|
-13-
EXHIBIT
B
Waiver
and Release.
In
exchange for the payments and benefits offered by PNC, you hereby:
|
(a)
|
Fully
release and forever discharge PNC, and each of its officers, directors,
employees and shareholders, from all liability upon claims of any
nature
whatsoever, including claims of negligence, breach of contract, violation
of federal, state or local laws which prohibit discrimination on
the basis
of race, color, national origin, religion, sex, age, veteran status,
disability or retaliation, the Age Discrimination in Employment Act
of
1967, as amended, and the laws enforced by any other federal, state
or local agencies, including claims under the Pennsylvania Human
Relations
Act, as amended, and including further claims of any other nature
whatsoever based upon any act or event which occurred on or before
the
date on which this Waiver and Release is signed and becomes effective,
whether known or unknown, which you now have or could claim to
have.
|
|
(b)
|
Agree
that you will not file, or permit to be filed in your name or on
your
behalf, any lawsuit in court against any of the persons or entities
released in this Waiver and Release (other than that which is excluded
pursuant to paragraph (d) below or to challenge this waiver and release
under the Age Discrimination in Employment Act), based upon any act
or
event which occurred on or before the effective date of this Waiver
and
Release.
|
|
(c)
|
Agree
that, while this waiver and release does not prevent you from filing
a
Charge with the Equal Employment Opportunity Commission (“EEOC”), if any
charge, complaint, lawsuit or administrative claim is filed in your
name
or on your behalf with the EEOC or any other administrative agency
or
organization, or in any other forum, against any of the persons or
entities released in this paragraph, based upon any act or event
which
occurred on or before the date you signed this Waiver and Release,
you
will not seek or accept any personal relief, including but not limited
to
any award of monetary damages or reinstatement to your employment
with
PNC. (Provided, however, that this provision shall not apply to
a claim for damages under the Age Discrimination in Employment
Act. If successful on such claim, however, any monetary damages
obtained by you would be offset by the monies paid under the Employment
Agreement (as defined below).)
|
|
(d)
|
Notwithstanding
any other provision of this Waiver and Release to the contrary, the
release and other provisions herein shall not operate to release,
and
shall not apply to disputes relating to your or your beneficiary’s rights
to receive all benefits and payments provided for or otherwise afforded
under the Employment Agreement between you, on the one hand, and
Yardville
National Bancorp and PNC Bank, National Association, on the other
hand,
dated June 6, 2007 (the “Employment Agreement”), to the extent you are
entitled to such benefits and
|
-14-
payments,
or through any benefit plan to which you are entitled pursuant to the Employment
Agreement at any time before or after the termination of your
employment.
Intending
to be legally bound hereby:
AGREED:
|
|
||
|
For
Myself, and for My Heirs, Personal
|
(date
of signing)
|
|
|
Representative
and Assigns
|
||
FOR
PNC
|
BY:
|
|||
|
(Human
Resources Signature)
|
(date
of signing)
|
||
-15-
NOTICE
You
will have at least 45 calendar days
to consider this Waiver and Release and whether to sign it. Even if
you decide to accept this offer beforehand, you may not sign this Waiver and
Release prior to ___________, 200__. If you sign the Waiver and
Release ahead of time, it will invalidate the Waiver and Release.
One
(1) properly dated and fully
executed original Waiver and Release must be received by the Human Resources
representative listed below within four (4) calendar days from _______________,
200__, or this offer is automatically void. If you do not sign or
thereafter revoke your signature under this Waiver and Release, you agree to
reimburse PNC for all payments provided to you pursuant to Section 5(a) of
the
Employment Agreement to which this Waiver and Release is attached, unless
specifically excluded.
This
Waiver and Release may be revoked
by you at any time within seven (7) calendar days after you have signed it,
in
which event PNC will consider that you are not eligible for the benefits set
forth herein. To revoke this Waiver and Release, written notice of
revocation must be received by ________________________ no later than seven
(7)
days after the date you signed it.
If
you have any questions or need to
discuss this Waiver and Release or your separation, please call
__________________ at (______) ______________.
