EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") made as of the 1st day of May,
1998, between MAIN STREET BANCORP, INC., a Pennsylvania business
corporation ("Main"), HERITAGE NATIONAL BANK, a national banking
corporation (the "Bank"), and XXXXX X. XXXXXX, an individual (the
"Executive").
W I T N E S S E T H:
WHEREAS, Heritage Bancorp, Inc. ("Heritage") and the
Executive are parties to (i) an employment agreement dated as of
September 13, 1994 (between the Executive and Miners National
Bancorp, Inc.), as amended as of September 15, 1997 (the "1994
Agreement"), and (ii) a change in control agreement dated as of
September 15, 1997, which agreement superseded a prior agreement
executed as of September 13, 1994 (the "Change in Control
Agreement"); and
WHEREAS, Heritage has, as of the date hereof, consolidated
with BCB Financial Services Corporation to form Main; and
WHEREAS, Main, the Bank and the Executive desire to enter
into a new Agreement regarding, among other things, the
employment of the Executive by Main and the Bank and,
concurrently therewith, to terminate the 1994 Agreement and the
Change in Control Agreement, all as hereinafter set forth.
NOW, THEREFORE, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Employment. Main and the Bank each hereby employ the
Executive, and the Executive hereby accepts employment with Main
and the Bank, on the terms and conditions set forth in this
Agreement.
2. Duties of Employee. The Executive will perform and
discharge well and faithfully such duties as an executive officer
of Main and the Bank as may be assigned to him from time to time
by the respective Boards of Directors of Main and the Bank. The
Executive will be employed as President and Chief Operating
Officer of Main and Chief Executive Officer and President of the
Bank, and will hold such other titles as may be given to him from
time to time by the respective Boards of Directors of Main and of
the Bank, and as specified in Section 30. The Executive will
devote his full time, attention and energies to the business of
Main and the Bank and will not, during the Employment Period (as
defined in Section 3), be employed or involved in any other
business activity, whether or not such activity is pursued for
gain, profit or other pecuniary advantage; provided, however,
that this section will not be construed as preventing the
Executive from (a) passively investing his personal assets, (b)
acting as a member of the Board of Directors of Main, the Bank or
any other corporation not in competition with either, or as a
member of the Board of Trustees of any other
organization, or (c) being involved in any community, civic or
similar activity.
3. Term of Employment. The Executive's employment under
this Agreement will be for a period (the "Employment Period")
commencing upon the date of this Agreement and ending at the end
of the term of this Agreement pursuant to Section 19, unless the
Executive's employment is sooner terminated in accordance with
Section 5 or one of the following provisions:
(a) Termination for Cause. The Executive's employment
under this Agreement may be terminated at any time during
the Employment Period for "Cause" (as herein defined), by
action of the Boards of Directors of Main or of the Bank,
upon giving notice of such termination to the Executive at
least 15 days prior to the date upon which such termination
is to take effect. As used in this Agreement, "Cause" means
any of the following events:
(i) the Executive is convicted of or enters a
plea of guilty or nolo contendere to a felony, a crime
of falsehood, or a crime involving fraud or moral
turpitude, or the actual incarceration of the Executive
for a period of 45 consecutive days;
(ii) the Executive willfully and repeatedly fails
to follow the lawful instructions of the Board of
Directors of Main or of the Board of Directors of the
Bank after the Executive's receipt of written notice of
such instructions, other than a failure resulting from
the Executive's incapacity because of physical or
mental illness;
(iii) a government regulatory agency recommends
or orders in writing that the Bank terminate the
employment of the Executive with the Bank or relieve
him of his duties as such relate to the Bank; or
(iv) the Executive violates the covenant not to
compete contained in Section 8 or the confidentiality
provisions of Section 9.
Notwithstanding the foregoing, the recommendation or order
of a government regulatory agency referred to in Section
3(a)(iii) will not constitute "Cause" giving Main the right
to terminate this Agreement as it relates to Main unless:
(i) such recommendation or order results from an
assessment against the Executive of a final
unappealable civil monetary penalty ("tier 3") under
Section 8(i)(2)(C) of the Federal Deposit Insurance
Act;
(ii) such penalty is based on a knowing or
reckless (A) violation of law or regulation, (B) unsafe
or unsound practice, or (C) breach of fiduciary duty;
(iii) in the case of each of (A), (B) and (C)
above, is either intentionally concealed by the
Executive from the Board (and is not actually known by
the Board), or committed by the Executive after
repeated warnings by the Board or the governmental
regulatory agency; and
(iv) in the case of each of (A), (B) and (C)
above, results in a substantial loss to Bank.
In addition, the Executive's employment under this Agreement
will not be deemed to have been terminated for "Cause" under
Sections 3(a)(i) or (ii) if such termination took place
solely as a result of:
(i) questionable judgment on the part of the
Executive;
(ii) any act or omission believed by the
Executive, in good faith, to have been in, or not
opposed to, the best interests of Main or of the Bank;
or
(iii) any act or omission in respect of which a
determination could properly be made that the Executive
met the applicable standard of conduct prescribed for
indemnification or reimbursement or payment of expenses
under the Articles of Incorporation or By-laws of Main
or the Articles of Association or By-laws of the Bank
or the directors' and officers' liability insurance of
Main or the Bank, in each case as in effect at the time
of such act or omission.
If the Executive's employment is terminated under the
provisions of this subsection, then all rights of the
Executive under Section 4 will cease as of the effective
date of such termination.
(b) Termination Without Cause. The Executive's
employment under this Agreement may be terminated at any
time during the Employment Period without "Cause" (as
defined in Section 3(a)), by action of the Boards of
Directors of Main and of the Bank, upon giving notice of
such termination to the Executive at least 30 days prior to
the date upon which such termination is to take effect. If
the Executive's employment is terminated under the
provisions of this subsection, then the Executive will be
entitled to receive the compensation set forth in Section 6.
(c) Voluntary Termination, Retirement or Death. If
the Executive voluntarily terminates employment without Good
Reason (as defined in Section 5), retires or dies,
the Executive's employment under this Agreement will be
deemed terminated as of the date of the Executive's
voluntary termination, retirement or death, and all rights
of the Executive under Section 4 will cease as of the date
of such termination and any benefits payable to the
Executive will be determined in accordance with the
retirement and insurance programs of Main and of the Bank
then in effect.
(d) Disability. If the Executive is incapacitated by
accident, sickness, or otherwise so as to render the
Executive mentally or physically incapable of performing the
essential duties required of the Executive under Section 2,
notwithstanding reasonable accommodation, for a continuous
period of six months, then, upon the expiration of such
period or at any time thereafter, by action of the Boards of
Directors of Main and of the Bank, the Executive's
employment under this Agreement may be terminated
immediately upon giving the Executive notice to that effect.
If the Executive's employment is terminated under the
provisions of this subsection, then all rights of the
Executive under Section 4 will cease as of the last business
day of the week in which such termination occurs, and the
Executive will thereafter be entitled to the benefits to
which he is entitled under any disability plan of Main or
the Bank in which he is then a participant (including the
minimum benefit described in Section 4(d)(iv)).
4. Employment Period Compensation and Related Matters.
(a) Salary. For services performed by the Executive
under this Agreement, Main and the Bank will pay the
Executive a salary, in the aggregate, during the Employment
Period, at the annualized rate of $215,200, payable at the
same times as salaries are payable to other executive
employees of Main or of the Bank. Main and/or the Bank may,
from time to time, increase (but not decrease) the
Executive's salary, and any and all such increases will be
deemed to constitute amendments to this subsection to
reflect the increased amounts, effective as of the dates
established for such increases by the Board of Directors of
Main or of the Bank in the resolutions authorizing such
increases.
(b) Bonus. For services performed by the Executive
under this Agreement, Main will pay the Executive a bonus,
annually during the Employment Period, in such amounts (if
any) and at such times as is provided in such incentive plan
for executive officers as may be approved by the Board of
Directors of Main and in effect from time to time. In
addition, Main may, from time to time, pay such other bonus
or bonuses to the Executive as Main, in its sole discretion,
deems appropriate. The payment of any such bonuses will not
reduce or otherwise affect any other obligation of Main
and/or the Bank to the Executive provided for in
this Agreement.
(c) Pension and Welfare Benefits. Main will provide
the Executive, during the Employment Period, with pension
and welfare benefits (within the meaning of Section 3 of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA")) in the aggregate not less favorable than those
received by other employees of Main.
(d) Fringe Benefits.
(i) In General. Except as otherwise provided in
this subsection, Main will provide the Executive,
during the Employment Period, with such fringe benefits
as may be provided generally from time to time for its
executive officers.
(ii) Supplemental Pension. The Executive will be
entitled to continued maintenance of the supplemental
pension benefit program in effect for him through
Heritage immediately prior to the date of this
Agreement, with such nonsubstantive amendments thereto
as may be required to give effect to the above-
referenced consolidation.
(iii) Life Insurance. In addition to the life
insurance coverage to which the Executive may be
entitled from time to time under Main's life insurance
plan, Main will provide him with supplemental life
insurance of not less than the greater of (A) 50% of
his annualized base salary or (B) $100,000, if he
initially qualifies therefor on a standard underwriting
basis. The Executive will be the owner of the policy
providing such life insurance coverage. Any required
increase in coverage by reason of an increase in base
salary shall be effected no later than 30 days after
such salary increase.
(iv) Disability Insurance. In addition to the
disability coverage to which the Executive may be
entitled from time to time under Main's disability
insurance plan, Main will provide him with such
additional monthly disability insurance coverage (if
any) as may be necessary to ensure a minimum level of
coverage of 50% of his monthly base salary, if he
qualifies therefor on a standard underwriting basis.
(v) Vacation. The Executive will be entitled to
not less than five weeks of vacation per calendar year,
plus one additional day for each five years of service
with Main and any predecessor of Main. The right to
carry over unused vacation days will be subject to the
executive personnel policies of Main from time to time
in effect.
(vi) Automobile. Main will provide the Executive
with the use of a purchased or leased automobile. The
make and model of such automobile will be reasonably
consistent with the Executive's position with Main.
Expenses of the use of such automobile will be borne as
provided from time to time in policies approved by
Main's Board of Directors.
(vii) Club Memberships. Main will pay
Executive's annual membership fees and periodic
assessments at the Schuylkill Country Club and the
Pottsville Club.
(viii) Stock Awards. Main will annually award to
the Executive, no later than February 15, 1,600 shares
of its common stock. The number of shares to be
awarded annually will be subject to such equitable
adjustment as may be determined by Main's Board of
Directors, in its discretion, in order to take into
account the effect of stock dividends, stock splits,
reorganizations and similar transactions or events.
(ix) Stock Options. The Executive will be
entitled to such stock option grants as may be granted
from time to time by the Board of Directors of Main
and/or the Compensation Committee of such Board and as
are consistent with the Executive's responsibilities
and performance.
(e) Expense Reimbursement. The Executive will be
entitled to reimbursement of all expenses incurred by him in
the discharge of his duties hereunder, or otherwise in
furtherance of the business of Main and the Bank, provided
he renders an accounting of such expenses in such manner as
may be required from time to time for employees generally.
(f) Salary Deferral. The Executive may request that
the payment of any portion of his base salary and/or bonus
for any calendar year be deferred. Such request must be
made in writing to Main and the Bank before the beginning of
such calendar year and must include the period of deferral
requested by the Executive (the "Deferral Period"). If the
Boards of Directors of Main and of the Bank approve such
request, the Executive will be entitled to receive, at the
end of the Deferral Period, the deferred portion of his base
salary and/or bonus plus interest at a compounded rate of 6%
per annum. Any salary and/or bonus which is deferred as
described herein will be credited to an account on the books
of Main and of the Bank established in the name of the
Executive. However, this account will not be funded, and
neither Main nor the Bank will be deemed to be a trustee for
the Executive with respect to any deferred amount. The
liabilities of Main and the Bank to the Executive hereunder
are those of a debtor pursuant to such contractual
obligations as are created by this Agreement. No
liabilities of Main and the Bank which arise under this
subsection will be deemed to be secured by any pledge or
other encumbrance on any property of Main or of the Bank.
Main and the Bank will not be required to segregate any
funds representing such deferred amounts, and nothing herein
will be construed as providing for such segregation.
5. Resignation of the Executive for Good Reason.
(a) Events Giving Right to Terminate for Good Reason.
The Executive may resign for Good Reason (as herein defined)
at any time during the Employment Period, as hereinafter set
forth. As used in this Agreement, the term "Good Reason"
means any of the following:
(i) any reduction in title or a material adverse
change in the Executive's responsibilities or authority
which are inconsistent with, or the assignment to the
Executive of duties inconsistent with, the Executive's
status as President and Chief Operating Officer of Main
and Chief Executive Officer and President of the Bank;
(ii) any reassignment of the Executive to a
principal office which is more than 50 miles from 000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx;
(iii) any removal of the Executive from office
except for any termination of the Executive's
employment under the provisions of Section 3(a) or (d);
(iv) any reduction in the Executive's annual base
salary as in effect on the date hereof or as the same
may be increased from time to time;
(v) any failure by Main and/or the Bank to
provide the Executive with benefits at least as
favorable as those enjoyed by the Executive under any
of the pension or welfare plans (as such terms are
defined in ERISA Section 3) of Main in which the
Executive is participating on the date of this
Agreement, or the taking of any action that would
materially reduce any of such benefits, unless the
change is part of a change applicable in each case to
employees generally; and
(vi) any material breach of this Agreement by
Main or the Bank, coupled with the failure to cure the
same within 30 days after receipt of a written notice
of such breach from the Executive.
(b) Notice of Termination. At the option of the
Executive, exercisable by the Executive within 90 days after
the occurrence of the event constituting Good Reason, the
Executive may resign from employment under this Agreement by
a notice in writing (the "Notice of Termination") delivered
to Main and the Bank and the provisions of Section
6 will thereupon apply.
(c) Special Rights of Termination. Notwithstanding
anything herein to the contrary, but subject to the
provisions of Section 3(a), within the later of (i) the
one-year period following the occurrence of a Change in
Control (as defined below), or (ii) the period ending
January 3, 2000, whether or not a Change in Control occurs
before such date, the Executive may terminate his employment
for any or no reason by delivering a written notice, similar
to a Notice of Termination, to Main; and such termination
will be deemed for all purposes to constitute a resignation
for Good Reason. In such event, he will be entitled to the
payments and benefits described in Section 6 generally,
subject to the limitation set forth in Section 6(e).
(d) Change in Control Defined. For purposes of this
Agreement, the term "Change in Control" means any of the
following:
(i) any "person" (as such term is used in
Sections 13(d) and 14(d)(2) of the Securities and
Exchange Act of 1934 (the "Exchange Act")), other than
Main, a subsidiary of Main, an employee benefit plan of
Main or a subsidiary of Main (including a related
trust), becomes the beneficial owner (as determined
pursuant to Rule 13d-3 under the Exchange Act),
directly or indirectly of securities of Main
representing more than 20% of the combined voting power
of Main's then outstanding securities;
(ii) the occurrence of, or execution of an
agreement providing for, a sale of all or substantially
all of the assets of Main or the Bank to an entity
which is not a direct or indirect subsidiary of Main;
(iii) the occurrence of, or execution of an
agreement providing for, a reorganization, merger,
consolidation or similar transaction involving Main,
unless (A) the shareholders of Main immediately prior
to the consummation of any such transaction will
initially own securities representing a majority of the
voting power of the surviving or resulting corporation,
and (B) the directors of Main immediately prior to the
consummation of such transaction will initially
represent a majority of the directors of the surviving
or resulting corporation; and
(iv) any other event which is at any time
irrevocably designated as a "Change in Control" for
purposes of this Agreement by resolution adopted by a
majority of the then non-employee directors of Main.
6. Rights in Event of Certain Termination of Employment.
In the event that the Executive resigns from employment for Good
Reason, by delivery of a Notice of Termination or other permitted
notice to Main and the Bank, or the Executive's employment is
terminated by Main and/or the Bank without Cause, Executive will
be entitled to receive the amounts and benefits set forth in this
section.
(a) Basic Payments. The Executive will be paid an
amount equal to three times the sum of (i) the highest
annualized base salary paid to him during the year of
termination or the immediately preceding two calendar years,
and (ii) the highest bonus paid to him with respect to one
of the three calendar years immediately preceding the year
of termination. Such amount will be paid to the Executive
in 36 equal monthly installments (without interest),
beginning 30 days following the date of termination of
employment. Notwithstanding the preceding provisions of
this subsection to the contrary, in the event this section
becomes applicable following a Change in Control, the
Executive will, within 30 days after his termination of
employment, be paid a lump sum equal to the present value of
the amounts otherwise payable under this subsection. For
purposes of the preceding sentence, present value will be
determined by using the short-term applicable federal rate
under Section 1274 of the Internal Revenue Code of 1986, as
amended (the "Code"), in effect on the date of termination
of employment. For purposes of this subsection, to the
extent necessary, base salary and bonuses with any
predecessor of Main or an affiliate thereof shall be taken
into account.
(b) Supplemental Payment in Lieu of Certain Benefits.
In lieu of continued pension, welfare and other benefits, a
lump sum cash payment of $105,417 will be paid to the
Executive within 30 days following the date of termination
of employment.
(c) Excise Tax Matters in General. In the event that
the amounts and benefits payable under this section, when
added to other amounts and benefits which may become payable
to the Executive by Main and/or the Bank, are such that he
becomes subject to the excise tax provisions of Code Section
4999, Main and the Bank will pay him such additional amount
or amounts as will result in his retention (after the
payment of all federal, state and local excise, employment,
and income taxes on such payments and the value of such
benefits) of a net amount equal to the net amount he would
have retained had the initially calculated payments and
benefits been subject only to income and employment
taxation. For purposes of the preceding sentence, the
Executive will be deemed to be subject to the highest
marginal federal, state and local tax rates. All
calculations required to be made under this subsection will
be made by Main's independent certified public accountants,
subject to the right of Executive's representative
to review the same. All such amounts required to be paid
will be paid at the time any withholding may be required
under applicable law, and any additional amounts to which
the Executive may be entitled will be paid or reimbursed no
later than 15 days following confirmation of such amount by
Main's accountants. In the event any amounts paid hereunder
are subsequently determined to be in error because estimates
were required or otherwise, the parties agree to reimburse
each other to correct such error, as appropriate, and to pay
interest thereon at the applicable federal rate (as
determined under Code Section 1274A for the period of time
such erroneous amount remained outstanding and
unreimbursed). The parties recognize that the actual
implementation of the provisions of this subsection are
complex and agree to deal with each other in good faith to
resolve any questions or disagreements arising hereunder.
(d) Limited Restriction on Payments and Benefits to
Avoid Excise Tax. Notwithstanding the provisions of
Subsection (c), if (i) it is determined that the payments to
be provided to the Executive hereunder would subject him to
the excise tax provisions of Code Section 4999, but (ii) a
5% reduction in the present value (as determined pursuant to
the provisions of Code Section 280G) of such payments would
result in no such excise tax being owed, then such payments
will be reduced or eliminated by the smallest amount
necessary to avoid the imposition of such excise tax. The
Executive will be entitled, within a reasonable period of
time, to specify which payments will be reduced or
eliminated.
(e) Special Limitation on Certain Payments and
Benefits. Notwithstanding any provision of this section to
the contrary, in the event the Executive terminates his
employment under Clause (ii) of Section 5(c) and no Change
in Control has then occurred, the termination payments and
benefits to which he is entitled hereunder will not exceed
the payments and benefits he would have been entitled to
under the Change in Control Agreement had it not been
terminated in connection with the execution of this
Agreement.
7. Expiration of Agreement. In the event this Agreement
expires by its terms in accordance with the provisions of Section
19(a) and the Executive's employment thereafter voluntarily or
involuntarily terminates prior to attainment of age 65 and other
than for Cause, Main will pay or cause to be paid to him, in one
lump sum within 30 days following termination, an amount equal to
1.5 times the sum of the amounts described in Clauses (i) and
(ii) of Section 6(a).
8. Covenant Not to Compete.
(a) The Executive hereby acknowledges and recognizes
the highly competitive nature of the business of Main and of
the Bank and accordingly agrees that, during and for the
applicable period set forth in Subsection (c), the Executive
will not:
(i) be engaged, directly or indirectly, either
for his own account or as agent, consultant, employee,
partner, officer, director, proprietor, investor
(except as an investor owning less than 5% of the stock
of a publicly owned company) or otherwise of, any
person, firm, corporation, or enterprise engaged, in
(A) the banking, thrift or credit union industry, or
(B) any other activity in which Main or any of its
subsidiaries is engaged during the Employment Period,
in either case (A) or (B) in any county in which, at
any time during the Employment Period or at the date of
termination of the Executive's employment, a branch,
office or other facility of Main or any of its
subsidiaries is located, or in any county contiguous to
such a county, including contiguous counties located
outside of the Commonwealth of Pennsylvania (the
"Non-Competition Area"); and
(ii) provide financial or other assistance to any
person, firm, corporation, or enterprise engaged in (A)
the banking or financial services industry, or (B) any
other activity in which Main or any of its subsidiaries
is engaged during the Employment Period, in the
Non-Competition Area.
(b) It is expressly understood and agreed that,
although the Executive, Main and the Bank consider the
restrictions contained in Subsection (a) reasonable for the
purpose of preserving for Main and its subsidiaries their
goodwill and other proprietary rights, if a final judicial
determination is made by a court having jurisdiction that
the time or territory or any other restriction contained in
Subsection (a) is an unreasonable or otherwise unenforceable
restriction against the Executive, the provisions of
Subsection (a) will not be rendered void but will be deemed
amended to apply as to such maximum time and territory and
to such other extent as such court may judicially determine
or indicate to be reasonable.
(c) The provisions of this section will be applicable
commencing on the date of this Agreement and ending as
follows:
(i) at the termination of the payments and
benefits provided under Section 6; provided, however,
that this clause will not apply in the event
Executive's termination of employment occurs following
a Change in Control or pursuant to Clause (ii) of
Section 5(c);
(ii) one year following the termination of
Executive's employment, in the case of a voluntary
termination without Good Reason; or
(iii) in all other cases, the date of Executive's
termination of employment.
9. Confidentiality.
(a) As used in this section, the term "Confidential
Information" means any and all information regarding the
organization, business or finances of Main or any of its
subsidiaries and affiliates, including, but not limited to,
any and all business plans and strategies, financial
information, proposals, reports, marketing plans and
information, cost information, customer information, claims
history and experience data, sales volume and other sales
statistics, personnel data, pricing information, concepts
and ideas, information respecting existing and proposed
investments and acquisitions, and information regarding
customers and suppliers, but the term "Confidential
Information" will not include information created by the
Executive or which prior to the Executive's receipt thereof
(i) was generally publicly available, or (ii) was in the
Executive's possession free of any restrictions on its use
or disclosure and from a source other than Main or any of
its subsidiaries or affiliates.
(b) The Executive acknowledges and agrees that his
employment by Main and the Bank will afford him an
opportunity to acquire Confidential Information and that the
misappropriation or disclosure of any Confidential
Information would cause irreparable harm to Main and its
subsidiaries and affiliates.
(c) During the Employment Period and for a period of
two years thereafter, the Executive will not use for the
benefit of anyone other than Main and its subsidiaries and
affiliates or disclose any of the Confidential Information
for any reason or purpose whatsoever except to authorized
representatives of such business entities or as directed or
authorized by Main.
(d) With respect to those items of Confidential
Information which constitute trade secrets under applicable
law, the Executive's obligations of confidentiality and
nondisclosure as set forth in this section will continue and
survive after the two-year period as provided in Subsection
(c) to the greatest extent permitted by applicable law.
(e) The Executive will not remove any records,
documents or any other tangible items (excluding the
Executive's personal property) from the premises of Main or
its subsidiaries or affiliates, in either original or
duplicate form, except as needed in the ordinary
course of performing services hereunder.
(f) Upon termination of this Agreement, the Executive
will immediately surrender to the owner thereof all
documents (other than documents created by him) in his
possession, custody or control embodying the Confidential
Information or any part thereof and will not thereafter
remove the same from the premises on which it is located.
10. Remedies. Executive acknowledges and agrees that the
remedy at law of Main and of the Bank for a breach or threatened
breach of any of the provisions of Section 8 or 9 would be
inadequate and, in recognition of this fact, in the event of a
breach or threatened breach by the Executive of any of the
provisions of Section 8 or 9, it is agreed that, in addition to
the remedy at law, Main and the Bank will be entitled to, without
posting any bond, and the Executive agrees not to oppose any
request of Main and the Bank for, equitable relief in the form of
specific performance, a temporary restraining order, a temporary
or permanent injunction, or any other equitable remedy which may
then be available. Nothing herein contained will be construed as
prohibiting Main and the Bank from pursuing any other remedies
available to them for such breach or threatened breach.
11. Arbitration. Main, the Bank and Executive recognize
that in the event a dispute should arise between them concerning
the interpretation or implementation of this Agreement, lengthy
and expensive litigation will not afford a practical resolution
of the issues within a reasonable period of time. Consequently,
each party agrees that all disputes, disagreements and questions
of interpretation concerning this Agreement are to be submitted
for resolution to the American Arbitration Association
("Association") in Philadelphia, Pennsylvania, in accordance with
the Individual Employment Dispute Resolution rules of the
Association. Main and the Bank, or Executive, may initiate an
arbitration proceeding at any time by giving notice to the others
in accordance with the rules of the Association. The Association
will designate a single arbitrator to conduct the proceeding, but
Main and the Bank, and the Executive, may, as a matter of right,
require the substitution of a different arbitrator chosen by the
Association. Each such right of substitution may be exercised
only once. The arbitrator will not be bound by the rules of
evidence and procedure of the courts of the Commonwealth of
Pennsylvania but will be bound by the substantive law applicable
to this Agreement. The decision of the arbitrator, absent fraud,
duress, incompetence or gross and obvious error of fact, will be
final and binding upon the parties and will be enforceable in
courts of proper jurisdiction. Following written notice of a
request for arbitration, Main and the Bank, and the Executive,
will be entitled to an injunction restraining all further
proceedings in any pending or subsequently filed litigation
concerning this Agreement, except as otherwise provided herein.
12. Legal Expenses. Main and/or the Bank will pay to the
Executive all reasonable legal fees and expenses when incurred by
the Executive in seeking to obtain or enforce any right or
benefit provided by this Agreement, provided he brings the action
in good faith.
13. Indemnification. Main and the Bank will indemnify the
Executive, to the fullest extent permitted under Pennsylvania and
federal law, with respect to any threatened, pending or completed
legal or regulatory action, suit or proceeding brought against
him by reason of the fact that he is or was a director, officer,
employee or agent of Main or the Bank, or is or was serving at
the request of Main or the Bank as a director, officer, employee
or agent of another person or entity. To the fullest extent
permitted by Pennsylvania and federal law, Main and the Bank
will, in advance of final disposition, pay any and all expenses
incurred by the Executive in connection with any threatened,
pending or completed legal or regulatory action, suit or
proceeding with respect to which he may be entitled to
indemnification hereunder. Main and the Bank will use their best
efforts to obtain insurance coverage for the Executive under a
policy covering directors and officers thereof against
litigation, arbitrations and other legal and regulatory
proceedings; provided, however, that nothing herein is to be
construed as requiring such action if the Boards of Directors of
Main and the Bank determine that such insurance coverage cannot
be obtained at commercially reasonable rates.
14. Notices. Any notice required or permitted to be given
under this Agreement will, to be effective hereunder, be given to
both Main and the Bank, in the case of notices given by the
Executive, and will, to be effective hereunder, be given by both
Main and the Bank, in the case of notices given to the Executive.
Any such notice will be deemed properly given if in writing and
if mailed by registered or certified mail, postage prepaid with
return receipt requested, to the residence of the Executive, in
the case of notices to the Executive, and to the respective
principal offices of Main and of the Bank, in the case of notices
to Main and the Bank.
15. Waiver. No provision of this Agreement may be
modified, waived, or discharged unless such waiver, modification,
or discharge is agreed to in writing and signed by the Executive,
an executive officer of Main, and an executive officer of the
Bank, each such officer specifically designated by the Boards of
Directors of Main and the Bank, respectively. No waiver by any
party hereto at any time of any breach by the other party hereto
of, or compliance with, any condition or provision of this
Agreement to be performed by such other party will be deemed a
waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time.
16. Assignment. This Agreement is not assignable by any
party hereto, except by Main and the Bank to any successor in
interest to the respective businesses of Main and the Bank.
17. Entire Agreement. This Agreement contains the entire
agreement of the parties relating to the subject matter of this
Agreement and, in accordance with the provisions of Section 27,
supersedes any prior agreement of the parties.
18. Successors; Binding Agreement.
(a) Main and the Bank will require any successor
(whether direct or indirect, by purchase, merger,
consolidation, or otherwise) to all or substantially all of
the business and/or assets of Main and/or the Bank to
expressly assume and agree to perform this Agreement in the
same manner and to the same extent that Main and the Bank
would be required to perform it if no such succession had
taken place. Failure by Main and the Bank to obtain such
assumption and agreement prior to the effectiveness of any
such succession will constitute a material breach of this
Agreement. As used in this Agreement, "Main" and the "Bank"
means Main and the Bank as hereinbefore defined and any
successor to the business and/or assets of Main and/or the
Bank as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
(b) This Agreement will inure to the benefit of and be
enforceable by the Executive's personal or legal
representatives, executors, administrators, heirs,
distributees, devisees, and legatees. If the Executive
should die while any amount is payable to the Executive
under this Agreement if the Executive had continued to live,
all such amounts, unless otherwise provided herein, will be
paid in accordance with the terms of this Agreement to the
Executive's devisee, legatee, or other designee, or, if
there is no such designee, to the Executive's estate.
19. Termination.
(a) Unless the Executive's employment is terminated
pursuant to the provisions of Section 3 or Section 5, the
term of this Agreement will be for a period commencing on
the date of this Agreement and ending on December 31, 2000;
provided, however, that this Agreement will be automatically
renewed on January 1, 2000 for the two-year period
commencing on such date and ending on December 31, 2001,
unless either party gives written notice of nonrenewal to
the other party on or before November 1, 1999 (in which case
this Agreement will continue in effect through December 31,
2000); and provided further, that if this Agreement is
renewed on January 1, 2000, it will be automatically renewed
on January 1 of each subsequent year (the "Annual Renewal
Date") for a period ending two years from each Annual
Renewal Date unless either party gives written notice of
nonrenewal to the other party at least 60 days prior to an
Annual Renewal Date (in which case this Agreement
will continue in effect for a term ending one year from the
Annual Renewal Date immediately following such notice). For
purposes of the preceding sentence, Main and the Bank will
be considered one party.
(b) Any termination of the Executive's employment
under this Agreement or of this Agreement will not affect
the benefit, noncompetition and confidential information
provisions of Section 6, 7, 8, 9 or 12, which will, if
relevant, survive any such termination and remain in full
force and effect in accordance with their respective terms.
(c) Except as provided in Section 27, nothing herein
will be construed as limiting, restricting or eliminating
any rights the Executive may have under any plan, contract
or arrangement to which he is a party or in which he is a
vested participant; provided, however, that any termination
payments required hereunder will be in lieu of any severance
benefits to which he may be entitled under a severance plan
or arrangement of Main and the Bank; and provided further,
that if the benefits under any such plan or arrangement may
not legally be eliminated, then the payments hereunder will
be correspondingly reduced in such equitable manner as the
Board of Directors of Main may determine.
20. No Mitigation or Offset. The Executive will not be
required to mitigate the amount of any payment provided for in
this Agreement by seeking employment or otherwise; nor will any
amounts or benefits payable or provided hereunder be reduced in
the event he does secure employment, except as otherwise provided
herein.
21. Validity. The invalidity or unenforceability of any
provisions of this Agreement will not affect the validity or
enforceability of any other provision of this Agreement, which
will remain in full force and effect. In addition, if a
government regulatory agency recommends or orders that the Bank
terminate the employment of the Executive with the Bank or
relieve him of his duties as such relate to the Bank, the
Agreement or such provision will nevertheless be and remain an
obligation of Main enforceable against it in accordance with its
terms, notwithstanding any such termination of the Executive's
employment with the Bank.
22. Applicable Law. Except to the extent preempted by
federal law, this Agreement will be governed by and construed in
accordance with the domestic internal law of the Commonwealth of
Pennsylvania.
23. Number. Words used herein in the singular will be
construed as being used in the plural, as the context requires,
and vice versa.
24. Headings. The headings of the sections and subsections
of this Agreement are for convenience only and will not control
or affect the meaning or construction or limit the scope or
intent of any of the provisions of this Agreement.
25. References to Entities. All references to Main will be
deemed to include references to the Bank, as appropriate in the
relevant context, and vice versa.
26. Guaranty. Main hereby irrevocably and unconditionally
guarantees to the Executive the full and timely performance by
the Bank of each and every obligation of the Bank contained in
this Agreement.
27. Effective Date; Termination of Prior Agreement. This
Agreement will become effective immediately upon the execution
and delivery of this Agreement by the parties hereto. Upon the
execution and delivery of this Agreement, any prior agreement
relating to the subject matter hereof, including without
limitation the 1994 Agreement and the Change in Control
Agreement, will be deemed automatically terminated and be of no
further force or effect.
28. Withholding For Taxes. All amounts and benefits paid
or provided hereunder will be subject to withholding for taxes as
required by law.
29. Individual Agreement. This Agreement is an agreement
solely between and among the parties hereto. It is intended to
constitute a nonqualified unfunded arrangement for the benefit of
a key management employee and will be construed and interpreted
in a manner consistent with such intention.
30. Other Position. Upon execution of this Agreement, Main
will use its best efforts to cause the Board of Directors of
Berks County Bank to elect Executive to the position of Vice
Chairman of such bank.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
MAIN STREET BANCORP, INC.
By /s/ Xxxxxx X. Xxxxxx
HERITAGE NATIONAL BANK
By /s/ Xxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
