EXHIBIT 10.2
FIFTH AMENDMENT TO EMPLOYMENT AGREEMENT
This FIFTH AMENDMENT TO EMPLOYMENT AGREEMENT is made effective as
of December 11, 2001, by and among Chester National Bank, a national bank,
Chester Bancorp, Inc., A Delaware Corporation, and Edward K. Collins.
WHEREAS, the parties hereto previously entered into and executed
that certain Employment Agreement dated October 4, 1996, as amended by that a
First, Second, Third and Fourth Amendment to Employment Agreement dated
December 31, 1997, December 8, 1998, December 14, 1999 and December 12, 2000
(the "Employment Agreement"). Capitalized terms used herein and not otherwise
defined herein have the meanings given to such terms in the Employment
Agreement;
WHEREAS, the parties to the Employment Agreement desire to amend
the Agreement to extend the term thereof for an additional year, as contemplated
by Section 2 of the Employment Agreement;
WHEREAS, the Board of Directors of the Bank has conducted a
formal performance evaluation of the Executive for purposes of determining
whether to extend the Employment Agreement, and has determined that such
Employment Agreement should be extended for an additional year.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and in the Employment Agreement, and upon the other terms and
conditions hereinafter provided, the parties hereto agree that the term of the
Employment Agreement is hereby extended until January 1, 2005 and all other
terms and provisions of the Employment Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Employment Agreement as of the 11th day of December 2001.
CHESTER NATIONAL BANK CHESTER BANCORP, INC.
By: /s/ Robert H. Gross By: /s/ Michael W. Welge
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Name: Robert H. Gross Name: Michael W. Welge
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Title: Vice President/Secretary Title: Chairman and President
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EXECUTIVE
/s/ Edward K. Collins
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Edward K. Collins
FOURTH AMENDMENT TO EMPLOYMENT AGREEMENT
This FOURTH AMENDMENT TO EMPLOYMENT AGREEMENT is made effective as of
December 12, 2000, by and among Chester National Bank, a national bank, Chester
Bancorp, Inc., a Delaware corporation, and Edward K. Collins.
WHEREAS, the parties hereto previously entered into and executed that
certain Employment Agreement dated October 4, 1996, as amended by that a First,
Second and Third Amendment to Employment Agreement dated December 31, 1997,
December 8, 1998 and December 14, 1999 (the "Employment Agreement"). Capitalized
terms used herein and not otherwise defined herein have the meanings given to
such terms in the Employment Agreement;
WHEREAS, the parties to the Employment Agreement desire to amend the
Agreement to extend the term thereof for an additional year, as contemplated by
Section 2 of the Employment Agreement;
WHEREAS, the Board of Directors of the Bank has conducted a formal
performance evaluation of the Executive for purposes of determining whether to
extend the Employment Agreement, and has determined that such Employment
Agreement should be extended for an additional year.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and in the Employment Agreement, and upon the other terms and conditions
hereinafter provided, the parties hereto agree that the term of the Employment
Agreement is hereby extended until January 1, 2004, and all other terms and
provisions of the Employment Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Employment Agreement as of the 12th day of December, 2000.
CHESTER NATIONAL BANK CHESTER BANCORP, INC.
By: /s/ Robert H. Gross By: /s/ Michael W. Welge
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Name: Robert H. Gross Name: Michael W. Welge
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Title: Vice-President/Secretary Title: Chairman and President
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EXECUTIVE:
/s/ Edward K. Collins
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Edward K. Collins
THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
This THIRD AMENDMENT TO EMPLOYMENT AGREEMENT is made effective as of
December 14, 1999, by and among Chester National Bank, a national bank, Chester
Bancorp, Inc., a Delaware corporation, and Edward K. Collins.
WHEREAS, the parties hereto previously entered into and executed that
certain Employment Agreement dated October 4, 1996, as amended by that a First
and Second Amendment to Employment Agreement dated December 31, 1997 and
December 8, 1998 (the "Employment Agreement"). Capitalized terms used herein and
not otherwise defined herein have the meanings given to such terms in the
Employment Agreement;
WHEREAS, the parties to the Employment Agreement desire to amend the
Agreement to extend the term thereof for an additional year, as contemplated by
Section 2 of the Employment Agreement;
WHEREAS, the Board of Directors of the Bank has conducted a formal
performance evaluation of the Executive for purposes of determining whether to
extend the Employment Agreement, and has determined that such Employment
Agreement should be extended for an additional year.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and in the Employment Agreement, and upon the other terms and conditions
hereinafter provided, the parties hereto agree that the term of the Employment
Agreement is hereby extended until January 1, 2003, and all other terms and
provisions of the Employment Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Employment Agreement as of the 14th day of December, 1999.
CHESTER NATIONAL BANK CHESTER BANCORP, INC.
By: /s/ Robert H. Gross By: /s/ Michael W. Welge
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Name: Robert H. Gross Name: Michael W. Welge
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Title: Vice-President/Secretary Title: Chairman and President
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EXECUTIVE
/s/ Edward K. Collins
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Edward K. Collins
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
This SECOND AMENDMENT TO EMPLOYMENT AGREEMENT is made effective as of
December 8, 1998, by and among Chester National Bank, a national bank, Chester
Bancorp, Inc., a Delaware corporation, and Edward K. Collins.
WHEREAS, the parties hereto previously entered into and executed that
certain Employment Agreement dated October 4, 1996, as amended by that certain
First Amendment to Employment Agreement dated December 31, 1997 (the
"Employment Agreement"). Capitalized terms used herein and not otherwise
defined herein have the meanings given to such terms in the Employment
Agreement;
WHEREAS, the parties to the Employment Agreement desire to amend the
Agreement to extend the term thereof for a additional year, as contemplated by
Section 2 of the Employment Agreement;
WHEREAS, the Board of Directors of the Bank has conducted a formal
performance evaluation of the Executive for purposes of determining whether to
extend the Employment Agreement, and has determined that such Employment
Agreement should be extended for an additional year.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and in the Employment Agreement, and upon the other terms and conditions
hereinafter provided, the parties hereto agree that the term of the Employment
Agreement is hereby extended until January 1, 2002, and all other terms and
provisions of the Employment Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
to Employment Agreement as of the 8th day of December, 1998.
CHESTER NATIONAL BANK CHESTER BANCORP, INC.
By: /s/ Robert H. Gross By: /s/ Michael W. Welge
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Name: Robert H. Gross Name: Michael W. Welge
------------------------- -------------------------
Title: Vice-President/Secretary Title: Chairman and President
------------------------ ------------------------
EXECUTIVE
/s/ Edward K. Collins
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Edward K. Collins
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This FIRST AMENDMENT TO EMPLOYMENT AGREEMENT is made effective as of
December 31, 1997, by and among Chester National Bank, a national bank, Chester
Bancorp, Inc., a Delaware corporation, and Edward K. Collins.
WHEREAS, the parties hereto previously entered into and executed that
certain Employment Agreement dated October 4, 1996 (the "Employment
Agreement"). Capitalized terms used herein and not otherwise defined herein
have the meanings given to such terms in the Employment Agreement;
WHEREAS, the parties to the Employment Agreement desire to amend the
Agreement to extend the term thereof for an additional year, as contemplated by
Section 2 of the Employment Agreement;
WHEREAS, the Board of Directors of the Bank has conducted a formal
performance evaluation of the Executive for purposes of determining whether to
extend the Employment Agreement, and has determined that such Employment
Agreement should be extended for an additional year.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and in the Employment Agreement, and upon the other terms and conditions
hereinafter provided, the parties hereto agree that the term of the Employment
Agreement is hereby extended until January 1, 2001, and all other terms and
provisions of the Employment Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
to Employment Agreement as of the 31st day of December, 1997.
CHESTER NATIONAL BANK CHESTER BANCORP, INC.
By: /s/ Robert H. Gross By: /s/ Michael W. Welge
---------------------------- ---------------------------------------
Name: Robert H. Gross Name: Michael W. Welge
-------------------------- -------------------------------------
Title: Vice-President/Secretary Title: Chairman of the Board and President
------------------------- ------------------------------------
EXECUTIVE
/s/ Edward K. Collins
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Edward K. Collins
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective as of October 4, 1996, by and between
Chester National Bank, a national bank (the "Bank"), Chester Bancorp, Inc., a
Delaware corporation (the "Company"); and Edward K. Collins (the "Executive").
WHEREAS, the Bank wishes to assure itself of the services of Executive for
the period provided in this Agreement; and
WHEREAS, the Executive is willing to serve in the employ of the Bank on a
full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual convenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agrees as follows:
1. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, Executive agrees to serve as
the Executive Vice President and Chief Executive Officer of the Bank and
Secretary and Treasurer of the Company. During said period, Executive also
agrees to serve, if elected, as a director and other officer of the Company or
any subsidiary or affiliate of the Company or the Bank.
2. TERMS AND DUTIES.
(a) The term of this Agreement shall be deemed to have commenced as of the
date first above written and shall continue for a period of thirty-six (36)
full calendar months thereafter. Commencing on the first anniversary date, and
continuing at each anniversary date thereafter, the Board of Directors of the
Bank (the "Board") may extend the Agreement for an additional year. Prior to
the extension of the Agreement as provided herein, the Board of Directors of
the Bank will conduct a formal performance evaluation of the Executive for
purposes of determining whether to extend the Agreement, and the results
thereof shall be included in the minutes of the Board's meeting.
(b) During the period of his employment hereunder, except for period of
absence occasioned by illness, reasonable vacation periods, and reasonable
leaves of absence, Executive shall devote substantially all his business time,
attention, skill, and efforts to the faithful performance of his duties
hereunder including activities and services related to the organization,
operation and management of the Bank; provided, however, that, with the
approval of the Board, as evidenced by a resolution of such Board, from time to
time, Executive may serve, or continue to serve, on the boards of directors of,
and hold any other offices or positions in, companies or organizations, which,
in such Board's judgement, will not present any conflict of interest with the
Bank, or materially affect the performance of Executive's duties pursuant to
this Agreement.
3. COMPENSATION AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute the
salary and benefits paid for the duties described in Sections 1 and 2. The Bank
shall pay Executive as compensation a salary of $80,000 per year ("Base
Salary"). Such Base Salary shall be payable in accordance with the customary
payroll practices of the Bank. During the period of this Agreement, Executive's
Base Salary shall be reviewed at least annually; the first such review will be
made no later than year from the date of this Agreement. Such review shall be
conducted by a Committee designated by the Board, and the Board may increase
Executive's Base Salary. In addition to the Base
Salary provided in this Section 3(a), the Bank shall provide Executive at no
cost to Executive with all such other benefits as are provided uniformly to
permanent full-time employees of the Bank.
(b) The Bank will provide Executive with employee benefit plans,
arrangements and perquisites substantially equivalent to those in which
Executive was participating or otherwise deriving benefit from immediately
prior to the beginning of the term of this Agreement, and the Bank will not,
without Executive's prior written consent, make any changes in such plans,
arrangements or perquisites which would adversely affect Executive's rights or
benefits thereunder. Without limiting the generality of the foregoing
provisions of this Subsection (b), Executive will be entitled to participate in
or receive benefits under any employee benefit plans including, but not limited
to, retirement plans, supplemental retirement plans, pension plans,
profit-sharing plans, health-and-accident plan, medical coverage or any other
employee benefit plan or arrangement made available by the Bank in the future
to its senior executives and key management employees, subject to, and on a
basis consistent with, the terms, conditions and overall administration of such
plans and arrangements. Executive will be entitled to incentive compensation
and bonuses as provided in any plan, or pursuant to any arrangement of the
Bank, in which Executive is eligible to participate. Nothing paid to the
Executive under any such plan or arrangement will be deemed to be in lieu of
other compensation to which the Executive is entitled under this Agreement,
except as provided under Section 5(e).
(c) In addition to the Base Salary provided for by paragraph (a) of this
Section 3, the Bank shall pay or reimburse Executive for all reasonable travel
and other obligations under this Agreement and may provide such additional
compensation in such form and such amounts as the Board may from time to time
determine.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the Bank of Executive's full-time employment hereunder for any
reason other than a Change in Control, as defined in Section 5(a) hereof;
disability, as defined in Section 6(a) hereof; death; retirement, as defined in
Section 7 hereof; or Termination for Cause, as defined in Section 8 hereof;
(ii) Executive's resignation from the Bank's employ, upon (A) unless consented
to by the Executive, a material change in Executive's function, duties, or
responsibilities, which change would cause Executive's position to become one
of lesser responsibility, importance, or scope from the position and attributes
thereof described in Sections 1 and 2, above (any such material change shall be
deemed a continuing breach of this Agreement), (B) a relocation of Executive's
principal place of employment by more than 35 miles from its location at the
effective date of this Agreement, or a material reduction in the benefits and
perquisites to Executive from those being provided as of the effective date of
this Agreement, (C) the liquidation or dissolution of the Bank, or (D) any
breach of this Agreement by the Bank. Upon the occurrence of any event
described in clauses (A), (B), (C) or (D), above, Executive shall have the
right to elect to terminate his employment under this Agreement by resignation
upon not less than sixty (60) days prior written notice given within a
reasonable period of time not to exceed, except in case of a continuing breach,
four (4) calendar months after the event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, the Bank shall pay
Executive, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, a severance pay or liquidated
damages, or both, a sum equal to the payments due to the Executive for the
remaining term of the Agreement, including Base Salary, bonuses, and any other
case or deferred compensation paid or to be paid (including the value of
employer contributions that would have been made on the Executive's behalf over
the remaining term of the agreement to any tax-qualified retirement plan
sponsored by the Bank as of the Date of Termination), to the Executive for the
term of the Agreement provided, however, that if the Bank is not in compliance
with its minimum capital requirements or if such payments would cause the Bank's
capital to be reduced below its minimum capital requirements, such payments
shall be deferred until such time as the Bank is in capital compliance. All
payments made pursuant to this Section 4(b) shall be paid in substantially equal
monthly
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installments over the remaining term of this Agreement following the
Executive's termination; provided, however, that if the remaining term of the
Agreement is less than one (1) year (determined as of the Executive's Date of
Termination), such payments and benefits shall be paid to the Executive in a
lump sum within thirty (30) days of the Date of Termination.
(c) Upon the occurrence of an Event of Termination, the Bank will cause to
be continued life, medical, dental and disability coverage substantially
identical to the coverage maintained by the Bank for Executive prior to his
termination. Such coverage shall cease upon the expiration of the remaining
term of this Agreement.
5. CHANGE IN CONTROL.
(a) No benefit shall be paid under this Section 5 unless there shall have
occurred a Change in Control of the Company or the Bank. For purposes of this
Agreement, a "Change in Control" of the Company or the Bank shall be deemed to
occur if and when (a) an offeror other than the Company purchases shares of
the common stock of the Company or the Bank pursuant to a tender or exchange
offer for such shares, (b) any person (as such term is used in Sections 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934) is or becomes the
beneficial owner, directly or indirectly, of securities of the Company or the
Bank representing 25% or more of the combined voting power of the Company's then
outstanding securities, (c) the membership of the board of directors of the
Company or the Bank changes as the result of a contested election, such that
individuals who were directors at the beginning of any twenty-four (24) month
period (whether commencing before or after the date of adoption of this Plan) do
not constitute a majority of the Board at the end of such period, or (d)
shareholders of the Company or the Bank approve a merger, consolidation, sale or
disposition of all or substantially all of the Company's or the Bank's assets,
or a plan of partial or complete liquidation.
(b) If any of the events described in Section 5(a) hereof constituting a
Change in Control have occurred or the Board of the Bank or the Company has
reasonably determined that a Change in Control has occurred, Executive shall be
entitled to the benefits provided in paragraphs (c), (d) and (e) in this
Section 5 upon his subsequent involuntary termination following the effective
date of a Change in Control (or voluntary termination following the effective
date of a Change in Control following any material change in Executive's
function, duties, or responsibilities, which change would cause Executive's
position to become one of lesser responsibility, importance, or scope from the
position and attributes thereof described in Sections 1 and 2, above, or
relocation of his principal place of employment by more than thirty-five (35)
miles from its location immediately prior to the Change in Control), unless
such termination is because of his death, retirement as provided in Section 7,
termination for Cause, or termination for Disability.
(c) Upon the occurrence of a Change in Control followed by the Executive's
termination of employment, the Bank shall pay Executive, or in the event of his
subsequent death, his beneficiary or beneficiaries, or his estate, as the case
may be, as severance pay or liquidated damages, or both, a sum equal to 2.99
times. Executive's average annual compensation during the years of the five (5)
year period preceding the Change in Control in which Executive was employed by
the Bank or the Company. Such payment shall be made in a lump sum paid within
ten (10) days of the Executive's Date of Termination.
(d) Upon the occurrences of a Change in Control followed by the
Executive's termination of employment, the Bank will cause to be continued
life, medical, dental and disability coverage substantially identical to the
coverage maintained by the Bank for Executive prior to his severance. In
addition, Executive shall be entitled to receive the value of employer
contributions that would have been made on the Executive's behalf over the
remaining term of the agreement to any tax-qualified retirement plan sponsored
by the Bank as of the Date of Termination. Such coverage and payments shall
cease upon the expiration of twelve (12) months.
(e) Upon the occurrence of a Change in Control, the Executive shall be
entitled to receive benefits due him under, or contributed by the Company or
the Bank on his behalf, pursuant to any retirement, incentive, profit sharing,
bonus, performance, disability or other employee benefit plan maintained by the
Bank or the Company on
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the Executive's behalf to the extent that such benefits are not otherwise paid
to the Executive upon a Change in Control.
6. TERMINATION FOR DISABILITY.
(a) If the Executive shall become disabled as defined in the Bank's then
current disability plan (or, if no such plan is then in effect, if the
Executive is permanently and totally disabled within the meaning of Section
22(e)(3) of the Code as determined by a physician designated by the Board), the
Bank may terminate Executive's employment for ""Disability."
(b) Upon the Executive's termination of employment for Disability, the
Bank will pay Executive, as disability pay, a bi-weekly payment equal to
three-quarters (3/4) of Executive's bi-weekly rate of Base Salary on the
effective date of such termination. These disability payments shall commence on
the effective date of Executive's termination and will end on the earlier of
(i) the date Executive returns to the full-time employment of the Bank in the
same capacity as he was employed prior to his termination for Disability and
pursuant to an employment agreement between Executive and the Bank; (ii)
Executive's full-time employment by another employer; (iii) Executive attaining
the age of 65; or (iv) Executive's death; or (v) the expiration of the term of
this Agreement. The disability pay shall be reduced by the amount, if any, paid
to the Executive under any plan of the Bank providing disability benefits to
the Executive.
(c) The Bank will cause to be continued life, medical, dental and
disability coverage substantially identical to the coverage maintained by the
Bank for Executive prior to this termination for Disability. This coverage and
payments shall cease upon the earlier of (i) the date Executive returns to the
full-time employment of the Bank, in the same capacity as he was employed prior
to his termination for Disability and pursuant to an employment agreement
between Executive and the Bank; (ii) Executive's full-time employment by
another employer; (iii) Executive's attaining the age of sixty-five (65); (iv)
the Executive's death; or (v) the expiration of the term of this Agreement.
(d) Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period during which
Executive is incapable of performing his duties hereunder by reason of
temporary disability.
7. TERMINATION UPON RETIREMENT; DEATH OF EXECUTIVE.
Termination by the Bank of Executive based on "Retirement" shall mean
retirement at age sixty-five (65) or in accordance with any retirement
arrangement established with Executive's consent with respect to him. Upon
termination of Executive upon Retirement, Executive shall be entitled to all
benefits under any retirement plan of the Bank or the Company and other plans
to which Executive is a party. Upon the death of the Executive during the term
of this Agreement, the Bank shall pay to Executive's estate the compensation
due to the Executive through the last day of the calendar month in which his
death occurred.
8. TERMINATION FOR CAUSE.
For purposes of this Agreement, "Termination for Cause" shall include
termination because of the Executive's personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of any law,
rule, or regulation (other than traffic violations or similar offenses) or final
cease-and-desist order, or material breach of any provision of this Agreement.
For purposes of this Section, no act, or the failure to act, on Executive's part
shall be "willful" unless done, or omitted to be done, not in good faith and
without reasonable belief that the action or omission was in the best interest
of the Bank or its affiliates. Notwithstanding the foregoing, Executive shall
not be deemed to have been terminated for Cause unless and until there shall
have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than three-fourths of the members of the Board at a
meeting of the Board called
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and held for that purpose (after reasonable notice to Executive and an
opportunity for him, together with counsel, to be heard before the Board),
finding that in the good faith opinion of the Board, Executive was guilty of
conduct justifying termination for Cause and specifying the reasons thereof. The
Executive shall not have the right to receive compensation or other unvested
benefits for any period after termination for Cause. Any unvested stock options
granted to Executive under any stock option plan or any unvested awards granted
under any other stock benefit plan of the Bank, the Company, or any subsidiary
or affiliate thereof, shall become null and void effective upon Executive's
receipt of Notice of Termination for Cause pursuant to Section 9 hereof, and
shall not be exercisable by Executive at any time subsequent to such Termination
for Cause.
9. REQUIRED PROVISIONS.
(a) The Bank may terminate Executive's employment at any time, but any
termination by the Bank, other than Termination for Cause, shall not prejudice
Executive's right to compensation or other benefits under this Agreement.
Executive shall not have the right to receive compensation or other benefits for
any period after Termination for Cause as defined in Section 8 herein.
(b) If Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act ("FDIA") (12
U.S.C. 1818(e)(3) and (g)(1)), the Bank's obligations under the Agreement shall
be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Bank may, in its
discretion, (i) pay Executive all or part of the compensation withheld while its
contract obligations were suspended and (ii) reinstate (in whole or in part) any
of its obligations that were suspended.
(c) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) or (g)(1) of the FDIA (12 U.S.C. 1818(e)(4) or (g)(1)), all
obligations of the Bank under the Agreement shall terminate as of the effective
date of the order, but vested rights of the contracting parties shall not be
affected.
(d) If the Bank is in default (as defined in Section 3(x)(1) of the FDIA),
all obligations under this Agreement shall terminate as of the date of default,
but this paragraph shall not affect any vested rights of the parties.
(e) All obligations under this Agreement shall be terminated (except to
the extent determined that continuation of the Agreement is necessary for the
continued operation of the Bank); (i) by the Director of the Office of Thrift
Supervision (the "Director") or his or her designee at the time the Federal
Deposit Insurance Corporation or the Resolution Trust Corporation enters into an
agreement to provide assistance to or on behalf of the Bank under the authority
contained in Section 13(c) of the FDIA or (ii) by the Director, or his or her
designee at the time the Director or such designee approves a supervisory merger
to resolve problems related to operation of the Bank or when the Bank is
determined by the Director to be in an unsafe or unsound condition. Any rights
of the parties that have already vested, however, shall not be affected by such
action.
(f) Any payments made to Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon compliance with 12 U.S.C. section
1828(k) and any regulations promulgated thereunder.
10. NOTICE.
(a) Any purported termination by the Bank or by Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
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(b) "Date of Termination" shall mean (A) if Executive's employment is
terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that he shall not have returned to the performance of his
duties on a full-time basis during such thirty (30) day period), and (B) if his
employment is terminated for any other reason, the date specified in the Notice
of Termination (which, in the case of a Termination for Cause, shall not be
less than thirty (30) days from the date such Notice of Termination is given).
(c) If, within thirty (30) days after any Notice of Termination is given,
the party receiving such Notice of Termination notifies the other party that a
dispute exists concerning there termination, except upon the occurrence of a
Change in Control and voluntary termination by the Executive in which case the
Date of Termination shall be the date specified in the Notice, the Date of
Termination shall be the date on which the dispute is finally determined,
either by mutual written agreement of the parties, by a binding arbitration
award, or by a final judgment, order or decree of a court of competent
jurisdiction (the time for appeal there from having expired and no appeal
having been perfected) and provided further that the Date of Termination shall
be extended by a notice of dispute only is such notice is given in good faith
and the party giving such notice pursues the resolution of such dispute with
reasonable diligence. Notwithstanding the pendency of any such dispute, the
Bank will continue to pay Executive his full compensation in effect when the
notice giving rise to the dispute was given (including, but not limited to,
Base Salary) and continue him as a participant in all compensation, benefit and
insurance plans in which he was participating when the notice of dispute was
given, until the dispute is finally resolved in accordance with this Agreement.
Amounts paid under this section are in addition to all other amounts due under
this Agreement and shall not be offset against or reduce any other amounts due
under this Agreement.
11. NON-COMPETITION.
(a) Upon any termination of Executive's employment hereunder pursuant to
an Event of Termination as provided in Section 4 hereof, Executive agrees not
to compete with the Bank and/or the Company for a period of one (1) year
following such termination in any city, town or county in which the Bank and/or
the Company has an office or has filed an application for regulatory approval
to establish an office, determined as of the effective date of such
termination. Executive agrees that during such period and within said cities,
towns and counties, Executive shall not work for or advise, consult or
otherwise serve, with directly or indirectly, any entity whose business
materially competes with the depository, lending or other business activities
of the Bank and/or the Company. The parties hereto, recognizing that
irreparable injury will result to the Bank and/or the Company, its business and
property in the event of Executive's breach of this Subsection 11(a) agree that
in the event of any such breach by Executive, the Bank and/or the Company will
be entitled, in addition to any other remedies and damages available, to an
injunction to restrain the violation hereof by Executive, Executive's partners,
agents, servants, employers, employees and all persons acting for or with
Executive. Executive represents and admits that in the event of the termination
of his employment pursuant to Section 8 hereof, Executive's experience and
capabilities are such that Executive can obtain employment in a business
engaged in other lines and/or of a different nature than the Bank and/or the
Company, and that the enforcement of a remedy by way of injunction will not
prevent Executive from earning a livelihood. Nothing herein will be construed
as prohibiting the Bank and/or the Company from pursuing any other remedies
available to the Bank and/or the Company for such breach or threatened breach,
including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Bank and affiliates
thereof, as it may exist from time to time, is a valuable, special and unique
asset of the business of the Bank. Executive will not, during or after the term
of his employment, disclose any knowledge of the past, present, planned or
considered business activities of the Bank or affiliates thereof to any person,
firm, corporation, or other entity for any reason or purpose whatsoever.
Notwithstanding the foregoing, Executive may disclose any knowledge of banking,
financial and/or economic principles, concepts or ideas which are not solely
and exclusively derived from the business plans and activities of the Bank. In
the event of a breach or threatened breach by the Executive of the provisions
of this Section, the Bank will be entitled to an injunction restraining
Executive from disclosing, in whole or in part, the knowledge of the past,
present, planned or considered business activities of the Bank or affiliates
thereof, or from rendering any services to any person, firm, corporation,
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other entity to whom such knowledge, in whole or in part, has been disclosed or
is threatened to be disclosed. Nothing herein will be construed as prohibiting
the Bank from pursuing any other remedies available to the Bank for such breach
or threatened breach, including the recovery of damages from Executive.
12. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank. The Company, however, guarantees all
payments and the provisions of all amounts and benefits due hereunder to
Executive and, if such payments are not timely paid or provided by the Bank,
such amounts and benefits shall be paid or provided by the Company.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank and Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to the
Executive of a kind elsewhere provided. No provision of this Agreement shall be
interpreted to mean that Executive is subject to receiving fewer benefits than
those available to him without reference to this Agreement.
14. NO ATTACHMENT.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive, the Bank, the Company and their respective successors and assigns.
15. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there by any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charges
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future as to any act
other than that specifically waived.
16. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other
provision of this Agreement or any part of such provision not held so invalid,
and each such other provision and part thereof shall to the full extent
consistent with law continue in full force and affect.
17. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
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18. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Illinois,
unless otherwise specified herein; provided, however, that in the event of a
conflict between the terms of this Agreement and any applicable federal or
state law or regulation, the provisions of such law or regulation shall prevail.
19. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by the employee within one
hundred (100) miles from the location of the Bank, in accordance with the rules
of the American Arbitration Bank then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that
Executive shall be entitled to seek specific performance of his right to be
paid until the Date of Termination during the pendency of any dispute or
controversy arising under or in connection with this Agreement.
20. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Bank, if successful pursuant to a legal judgment,
arbitration or settlement.
21. INDEMNIFICATION.
The Bank shall provide Executive (including his heirs, executors and
administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense, or in lieu thereof, shall indemnify
Executive (and his heirs, executors and administrators) to the fullest extent
permitted under law against all expenses and liabilities reasonably incurred by
him in connection with or arising out of any action, suit or proceeding in
which he may be involved by reason of his having been a director or officer of
the Bank (whether or not he continues to be a director or officer at the time
of incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgment, court costs and attorneys' fees and
the cost of reasonable settlements.
22. SUCCESSOR TO THE BANK OR THE COMPANY.
The Bank and the Company shall require any successor or assignee, whether
direct or indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or the Company, expressly
and unconditionally to assume and agree to perform the Bank's or the Company's
obligations under this Agreement, in the same manner and to the same extent
that the Bank or the Company would be required to perform if no such succession
or assignment had taken place.
23. NO DUTY TO MITIGATE DAMAGES.
In the event of termination of Executive's employment hereunder, Executive
shall have no duty to mitigate any damages to the Bank or the Company caused by
such termination. No compensation received by Executive from other outside
sources following a termination of employment will have any effect on the
obligations of the Bank and the Company under this Agreement.
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IN WITNESS WHEREOF, the Bank and the Company hereto have caused this
Agreement to be executed and their seal to be affixed hereunto by a duly
authorized officer or director, and Executive has signed this Agreement,
all on the 4th day of October, 1996.
CHESTER NATIONAL BANK SUCCESSOR OF
ATTEST: CHESTER SAVINGS BANK
/s/ Robert H. Gross By: /s/ Howard A. Boxdorfe
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[SEAL] PRESIDENT
ATTEST: CHESTER BANCORP, INC.
/s/ Robert H. Gross By: /s/ Michael W. Welge
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[SEAL] CHAIRMAN AND PRESIDENT
WITNESS:
/s/ Robert H. Gross By: /s/ Edward K. Collins
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EXECUTIVE
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