NATIONAL PENN BANCSHARES, INC. CONSULTING AND NONCOMPETITION AGREEMENT
EXHIBIT
10.4
NATIONAL
PENN BANCSHARES, INC.
CONSULTING AND NONCOMPETITION
AGREEMENT
This Consulting and Noncompetition
Agreement (this “Agreement”) is being entered into as of as of January 27, 2010,
by and between National Penn Bancshares, Inc., a Pennsylvania corporation
(“National Penn”), and Xxxxxxx
X. Xxxxxxxx (the “Consultant”).
RECITALS:
WHEREAS, the Consultant
desires to provide the services described herein subject to the terms and
conditions set forth below:
NOW THEREFORE, in
consideration of the mutual covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Consultancy. During
the period beginning on the date on which Consultant’s employment with National
Penn is terminated (the “Termination Date”) and for a period of twelve (12)
months thereafter (the “Consulting Period”), the Consultant shall undertake to
provide his personal advice and counsel to National Penn and its subsidiaries
and affiliates in connection with the business of National Penn and its
subsidiaries, including, but not limited to:
(a) providing
continued services in the same manner as when he was employed on a permanent
basis as necessary to ensure a proper transition of his former job function to
his replacement;
(b) consulting
with National Penn regarding the operations and customer relationships of
National Penn and its subsidiaries;
(c) providing
introductions to customers and providing personal services similar to those the
Consultant is currently providing National Penn; (collectively the “Consulting
Services”), subject to the terms and conditions which are set forth
herein. The Consultant shall provide such Consulting Services as may
be requested from time to time by either the President and Chief Executive
Officer or Senior Executive Vice President and Chief Operating Officer of
National Penn. During the Consulting Period, the Consultant shall be
available to devote up to 30 hours per week of his business time, attention,
skills and efforts (other than during holidays, vacations and periods of
illness) to the business and affairs of National Penn and its subsidiaries and
affiliates and shall use his reasonable best efforts to promote the interests of
National Penn and its subsidiaries and affiliates. Such Consulting
Services may be provided in person, telephonically, electronically or by
correspondence as reasonably determined by National Penn. The
Consultant shall be available for meetings at the principal executive offices of
National Penn at such times as National Penn shall reasonably
require.
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(d) During
the Consulting Period, the Consultant shall be treated as an independent
contractor and shall not be deemed to be an employee of National Penn or any
subsidiary or affiliate of National Penn.
(e) The
obligations of National Penn under this Agreement are subject to and contingent
upon the Consultant continuing to be employed by National Penn from the date
hereof until the Termination Date.
2. Non-Disclosure of Confidential
Information. Except in the course of performing the Consulting Services
hereunder, and in the pursuit of the business of National Penn or any of its
affiliates, the Consultant shall not, except as required by law, at any time
during or following the Consulting Period, disclose or use any confidential
information or proprietary data of National Penn or any of its affiliates or
predecessors, unless such confidential information or proprietary data become
publicly known through no fault of the Consultant. Without limiting
the generality of the foregoing, the Consultant agrees that all information
concerning the identity of the customers of National Penn and its affiliates and
the relations of such entities with their customers is confidential
information. This Section 2 shall survive the termination or
expiration of the Consulting Period.
3. Non-Competition
Provisions. The Consultant agrees that during the Consulting
Period, the Consultant will not (i) without the prior written consent of
National Penn (which consent may be given at National Penn’s discretion, but not
unreasonably withheld), directly or indirectly, engage in, become interested in,
or become associated with, in the capacity of employee, consultant, director,
officer, owner, principal, agent, trustee or in any other capacity whatsoever,
any proprietorship, partnership, corporation, enterprise or entity located
within a fifty (50) mile radius from Boyertown, PA, which proprietorship,
partnership, corporation, enterprise or other entity is, or may be deemed to be
by National Penn, competitive with any business carried on by National Penn or
its affiliates including but not limited to entities which lend money and take
deposits (in each case, a “Competing Business”), provided, however, that this
provision shall not prohibit the Consultant from owning bonds, voting and
non-voting preferred stock or up to five percent (5%) of the outstanding common
stock of any Competing Business if such common stock is publicly traded, (ii)
solicit or induce, or cause others to solicit or induce, any employee of
National Penn or any of its affiliates to leave the employment of such entities,
or (iii) without the prior written consent of National Penn (which consent may
be given at National Penn’s discretion, but not unreasonably withheld) solicit
(whether by mail, telephone, personal meeting or any other means, excluding
general solicitations of the public that are not based in whole or in part on
any list of customers of National Penn or any of its affiliates) any customer of
National Penn or any of its affiliates to transact business with any other
entity, whether or not a Competing Business, or to reduce or refrain from doing
any business with National Penn or its subsidiaries, or interfere with or damage
(or attempt to interfere with or damage) any relationship between National Penn
or its affiliates and any such customers.
4. Compensation. In
consideration of the obligations and commitments of the Consultant under this
Agreement, including Sections 1, 2 and 3 hereof, National Penn shall pay to the
Consultant twelve equal installment payments in amounts equal to $14,583.33 per
month on the last business day of each month during the Consulting
Period.
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5. Benefits. If
Consultant was participating in medical and dental coverage under a
Company-sponsored plan immediately prior to the Termination Date, Consultant
will receive such medical and dental benefits during the Consulting Period,
commencing as of the Termination Date, subject to Consultant’s continued payment
of the applicable monthly premiums at active Company employee
rates. Health benefits to which Consultant is entitled by law under
the Consolidated Omnibus Budget Reconciliation Act, as amended (“COBRA”) will
commence immediately upon the cessation of the Consulting Period.
6. Successors
and Assigns.
(a) During
the Consulting Period, National Penn will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of its business and/or assets, by agreement in form and
substance satisfactory to the Consultant, expressly, absolutely and
unconditionally to assume and agree to perform this Agreement in the same manner
and to the same extent that National Penn would be required to perform it if no
such succession or assignment had taken place. Any failure of
National Penn to obtain such agreement prior to the effectiveness of any such
succession or assignment during this twelve-month period shall be a material
breach of this Agreement.
(b) This
Agreement and all rights of the Consultant shall inure to the benefit of and be
enforceable by the Consultant’s personal or legal representatives, estate,
executors, administrators, heirs and beneficiaries. In the event of
the Consultant’s death, any amounts accrued and unpaid through the date of death
shall be paid to the Consultant’s estate, heirs and
representatives. Except as provided
in this Section 6, no party may assign this
Agreement or any rights, interests, or obligations hereunder without the prior
written approval of the other party. Subject to the preceding
sentence, this Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted
assigns.
7. Enforcement. This
Agreement shall be construed, enforced and interpreted in accordance with and
governed by the laws of the Commonwealth of Pennsylvania, without reference to
its principles of conflict of laws, except to the extent that federal law shall
be deemed to preempt such state laws.
8. Amendment. This
Agreement may be amended or modified at any time by a written instrument
executed by the parties.
9. Waiver. Failure to insist upon
strict compliance with any of the terms, covenants or conditions hereof shall
not be deemed a waiver of such term, covenant or condition. A waiver
of any provision of this Agreement must be made in writing, designated as a
waiver, and signed by the party against whom its enforcement is
sought. Any waiver or relinquishment of any right or power hereunder
at any one or more times shall not be deemed a waiver or relinquishment of such
right or power at any other time or times.
10. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, and all of which shall constitute one and the same
Agreement.
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11. Headings and
Construction. The headings of sections in this Agreement are
for convenience of reference only and are not intended to qualify the meaning of
any section. Any reference to a section number shall refer to a
section of this Agreement, unless otherwise stated.
12. Entire Agreement. This
instrument contains the entire agreement of the parties relating to the subject
matter hereof, and supersedes in its entirety any and all prior agreements,
understandings or representations relating to the subject matter hereof, except
that the Executive Agreement shall remain in effect as amended by this
Agreement.
IN WITNESS WHEREOF, National
Penn has caused this Agreement to be executed by its duly authorized officer,
and the Consultant has signed this Agreement, all as of the date first written
above.
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NATIONAL
PENN BANCSHARES, INC.
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/s/ Xxxxx X.
Xxxxxx
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Name: Xxxxx
X. Xxxxxx
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Title: President
& CEO
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WITNESS:
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/s/ H. Xxxxxxxx
Xxxxxxxxx
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/s/ Xxxxxxx X.
Xxxxxxxx
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X.
Xxxxxxxx Xxxxxxxxx
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XXXXXXX
X. XXXXXXXX
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