EXHIBIT 10.4
AMENDMENT NO. 4 TO EXECUTIVE EMPLOYMENT AGREEMENT
This Amendment No. 4 to an Executive Employment Agreement (the
"Agreement"), dated June 28,1991, among Penncore Financial Services Corporation
(the "Corporation"), Commonwealth State Bank (the "Bank"), and Owen O. Freeman,
Jr. (the "Executive") is made this 31st day of December, 1996.
WHEREAS, the parties desire to amend the Agreement relating to the Term of
Employment of the Executive and the Annual Direct Salary paid to the Executive;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
intending to be legally bound hereby, the parties agree as follows:
Subparagraphs 1 and 4(a) are hereby amended to read as follows:
1. TERM OF EMPLOYMENT. The Bank employs the Executive and the
Executive accepts employment with the Bank for a two year
period beginning January 1, 1997. The term of this Agreement
will automatically renew each anniversary date unless
written notice is provided as stipulated under Section 10,
Termination, of the Agreement. (For example, the initial
contract period is January 1, 1997, through December 31,
1998. On January 1, 1998, the term of this Agreement extends
to December 31, 1999, unless the parties provide written
notice of their intent not to renew the Agreement term, as
stipulated in Section 10 of the Agreement.)
4(a). ANNUAL DIRECT SALARY. As compensation for services rendered
the Bank under this Agreement, the Executive shall be
entitled to receive from the Bank an annual direct salary of
not less than $145,000 per year, (the "Annual Direct
Salary") payable in substantially equal monthly installments
(or such other more frequent intervals as may be determined
by the Board of Directors of the Bank as payroll policy for
senior executive officers) prorated for any partial
employment period. The Annual Direct Salary shall be
reviewed by the Board of Directors on each anniversary of
this Agreement and shall be adjusted in accordance with the
prevailing market value of the position and the current pay
increase practices of the Corporation and the Bank. In no
event shall the Annual Direct Salary be decreased.
These Amendments supercede any and all Amendments, either oral or in
writing, between the parties with respect to Subparagraphs 1 and 4(a) of the
Agreement. This Amendment and the Agreement contain all of the covenants and
agreements between the parties with respect to the employment of the Executive
by the Corporation and the Bank.
All of the remaining recitals and paragraphs of the Agreement are hereby
reaffirmed, reratified, and reapproved by the parties hereto.
IN WITNESS WHEREOF, the parties have hereunto executed this Amendment No. 4
to the Agreement on the date aforesaid.
ATTEST: PENNCORE FINANCIAL SERVICES
CORPORATION
/s/ Sharon M. Fink /s/ H. Paul Lewis
- ---------------------------------- ----------------------------------
Assistant Secretary/Treasurer H. Paul Lewis
President & CEO
ATTEST: COMMONWEALTH STATE BANK
/s/ Sharon M. Fink /s/ H. Paul Lewis
- ---------------------------------- ----------------------------------
Sharon M. Fink, Vice President and H. Paul Lewis
Assistant Secretary/Treasurer President & CEO
WITNESS:
/s/ Sharon M. Fink /s/ Owen O. Freeman, Jr.
- ---------------------------------- ----------------------------------
Sharon M. Fink Owen O. Freeman, Jr.
AMENDMENT NO. 3 TO EXECUTIVE EMPLOYMENT AGREEMENT
This Amendment No. 3 to an Executive Employment Agreement (the
"Agreement"), dated June 28, 1991, among Penncore Financial Services Corporation
(the "Corporation"), Commonwealth State Bank (the "Bank"), and Owen O. Freeman,
Jr. (the "Executive") is made this 5th day of April, 1996.
WHEREAS, the parties desire to amend the Agreement relating to the Term of
Employment of the Executive and the Annual Direct Salary paid to the Executive;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
intending to be legally bound hereby, the parties agree as follows:
Subparagraphs 1 and 4(a) are hereby amended to read as follows:
1. TERM OF EMPLOYMENT. The Bank employs the Executive and the
Executive accepts employment with the Bank for a two year
period beginning January 1, 1996. The term of this Agreement
will automatically renew each anniversary date unless
written notice is provided as stipulated under Section 10,
Termination, of the Agreement. (For example, the initial
contract period is January 1, 1996, through December 31,
1997. On January 1, 1997, the term of this Agreement extends
to December 31, 1998, unless the parties provide written
notice of their intent not to renew the Agreement term, as
stipulated in Section 10 of the Agreement.)
4(a). ANNUAL DIRECT SALARY. As compensation for services rendered,
the Bank under this Agreement, the Executive shall be
entitled to receive from the Bank an annual direct salary of
not less than $130,000 per year, (the "Annual Direct
Salary") payable in substantially equal monthly installments
(or such other more frequent intervals as may be determined
by the Board of Directors of the Bank as payroll policy for
senior executive officers) prorated for any partial
employment period. The Annual Direct Salary shall be
reviewed by the Board of Directors on each anniversary of
this Agreement and shall be adjusted in accordance with the
prevailing market value of the position and the current pay
increase practice of the Bank. In no event shall the Annual
Direct Salary be decreased.
These Amendments supercede any and all Amendments, either oral or in
writing, between the parties with respect to Subparagraphs 1 and 4(a) of the
Agreement. This Amendment and the Agreement contain all of the covenants and
agreements between the parties with respect to the employment of the Executive
by the Corporation and the Bank.
All of the remaining recitals and paragraphs of the Agreement are hereby
reaffirmed, reratified, and reapproved by the parties hereto.
IN WITNESS WHEREOF, the parties have hereunto executed this Amendment No. 3
to the Agreement on the date aforesaid.
ATTEST: PENNCORE FINANCIAL SERVICES
CORPORATION
/s/ Sharon M. Fink /s/ H. Paul Lewis
- ---------------------------------- ----------------------------------
Sharon M. Fink H. Paul Lewis
Assistant Secretary/Treasurer President & CEO
ATTEST: COMMONWEALTH STATE BANK
/s/ Sharon M. Fink /s/ H. Paul Lewis
- ---------------------------------- ----------------------------------
Sharon M. Fink, Vice President and H. Paul Lewis
Assistant Secretary/Treasurer President & CEO
WITNESS:
/s/ Sharon M. Fink /s/ Owen O. Freeman, Jr.
- ---------------------------------- ----------------------------------
Sharon M. Fink Owen O. Freeman, Jr.
AMENDMENT NO. 2 TO EXECUTIVE EMPLOYMENT AGREEMENT
This Amendment No. 2 to an Executive Employment Agreement (the
"Agreement"), dated June 28,1991, among Penncore Financial Services Corporation
(the "Corporation"), Commonwealth State Bank (the "Bank"), and Owen O. Freeman,
Jr. (the "Executive") is made this 15th day of March, 1994.
WHEREAS, the parties desire to amend the Agreement relating to the Term of
Employment of the Executive and the Annual Direct Salary paid to the Executive;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
intending to be legally bound hereby, the parties agree as follows:
Subparagraphs 1 and 4(a) are hereby amended to read as follows:
1. TERM OF EMPLOYMENT. The Bank employs the Executive and the
Executive accepts employment with the Bank for a three year
period beginning January 1, 1994, and concluding as of the
close of business on December 31, 1996.
4(a). ANNUAL DIRECT SALARY. As compensation for services rendered,
the Bank under this Agreement, the Executive shall be
entitled to receive from the Bank an annual direct salary of
not less than $100,000 per year, (the "Annual Direct
Salary") payable in substantially equal monthly installments
(or such other more frequent intervals as may be determined
by the Board of Directors of the Bank as payroll policy for
senior executive officers) prorated for any partial
employment period. The Annual Direct Salary shall be
reviewed by the Board of Directors on each anniversary of
this Agreement and shall be adjusted in accordance with the
prevailing market value of the position and the current pay
increase practice of the Bank. In no event shall the Annual
Direct Salary be decreased.
These Amendments supercede any and all Amendments, either oral or in
writing, between the parties with respect to Subparagraphs 1 and 4(a) of the
Agreement. This Amendment and the Agreement contain all of the covenants and
agreements between the parties with respect to the employment of the Executive
by the Corporation and the Bank.
All of the remaining recitals and paragraphs of the Agreement are hereby
reaffirmed, reratified, and reapproved by the parties hereto.
IN WITNESS WHEREOF, the parties have hereunto executed this Amendment No. 2
to the Agreement on the date aforesaid.
ATTEST: PENNCORE FINANCIAL SERVICES
CORPORATION
/s/ Sharon M. Fink /s/ H. Paul Lewis
- ---------------------------------- ----------------------------------
Sharon M. Fink H. Paul Lewis
Assistant Secretary/Treasurer President and Chief Executive Officer
ATTEST: COMMONWEALTH STATE BANK
/s/ Sharon M. Fink /s/ H. Paul Lewis
- ---------------------------------- ----------------------------------
Sharon M. Fink, Vice President and H. Paul Lewis
Assistant Secretary/Treasurer President and Chief Executive
Officer
WITNESS:
/s/ Sharon M. Fink /s/ Owen O. Freeman, Jr.
- ---------------------------------- ----------------------------------
Sharon M. Fink Owen O. Freeman, Jr.
AMENDMENT NO. 1 TO EXECUTIVE EMPLOYMENT AGREEMENT
This Amendment No. 1 to an Executive Employment Agreement (the
"Agreement"), dated June 28, 1991, among Penncore Financial Services Corporation
(the "Corporation"), Commonwealth State Bank (the "Bank"), and Owen O. Freeman,
Jr. (the "Executive") is made this 29th day of June, 1993.
WHEREAS, the parties desire to amend the Agreement relating to the Term of
Employment of the Executive and the Annual Direct Salary paid to the Executive;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
intending to be legally bound hereby, the parties agree as follows
Subparagraphs 1 and 4(a) are hereby amended to read as follows:
1. TERM OF EMPLOYMENT. The Bank employs the Executive and the
Executive accepts employment with the Bank for a three year
period beginning January 1, 1993, and concluding as of the
close of business on December 31, 1995.
4(a). ANNUAL DIRECT SALARY. As compensation for services rendered,
the Bank under this Agreement, the Executive shall be
entitled to receive from the Bank an annual direct salary of
not less than $100,000 per year, (the "Annual Direct
Salary") payable in substantially equal monthly installments
(or such other more frequent intervals as may be determined
by the Board of Directors of the Bank as payroll policy for
senior executive officers) prorated for any partial
employment period. The Annual Direct Salary shall be
reviewed by the Board of Directors on each anniversary of
this Agreement and stall be adjusted in accordance with the
prevailing market value of the position and the current pay
increase practice of the Bank. In no event shall the Annual
Direct Salary be decreased.
These Amendments supercede any and all Amendments, either oral or in
writing, between the parties with respect to subparagraphs 1 and 4(a) of the
Agreement. This Amendment and the Agreement contain all of the covenants and
agreements between the parties with respect to the employment of the Executive
by the Corporation and the Bank. All of the remaining recitals and paragraphs of
the Agreement are hereby reaffirmed, reratified, and reapproved by the parties
hereto.
These Amendments supercede any and all Amendments, either oral or in
writing, between the parties with respect to Subparagraphs 1 and 4(a) of the
Agreement. This Amendment and the Agreement contain all of the covenants and
agreements between the parties with respect to the employment of the Executive
by the Corporation and the Bank. All of the remaining recitals and paragraphs of
the Agreement are hereby reaffirmed, reratified, and reapproved by the parties
hereto.
IN WITNESS WHEREOF, the parties have hereunto executed this Amendment No. 1
to the Agreement on the date and date aforesaid.
ATTEST: PENNCORE FINANCIAL SERVICES
CORPORATION
/s/ Sharon M. Fink /s/ H. Paul Lewis
- ---------------------------------- ----------------------------------
Sharon M. Fink H. Paul Lewis
Assistant Secretary/Treasurer President and Chief Executive Officer
ATTEST: COMMONWEALTH STATE BANK
/s/ Sharon M. Fink /s/ H. Paul Lewis
- ---------------------------------- ----------------------------------
Sharon M. Fink, H. Paul Lewis
Vice President and President and Chief
Assistant Secretary/Treasurer Executive Officer
WITNESS:
/s/ Sharon M. Fink /s/ Owen O. Freeman, Jr.
- ---------------------------------- ----------------------------------
Sharon M. Fink Owen O. Freeman, Jr.
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is made on the 28th day of June, 1991 between PENNCORE
FINANCIAL SERVICES CORPORATION (the "Corporation"), a Pennsylvania corporation
with its principal office at Friends Lane & Rt. 332, Newtown, PA, COMMONWEALTH
STATE BANK (the "Bank"), a Pennsylvania state-chartered banking institution with
its principal office at Friends Lane & Rt. 332, Newtown, PA and Owen O. Freeman,
Jr. (the "Executive"), residing at 32 South Chancellor Street, Newtown,
Pennsylvania 18940.
WHEREAS, the Bank is a wholly-owned subsidiary of the Corporation; and
WHEREAS, the Corporation and the Bank desire to employ the Executive as the
Chairman of their respective Boards of Directors under the terms and conditions
set forth herein; and
WHEREAS, the Executive desires to serve the Bank in an executive capacity
under the terms and conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and intending to be legally bound hereby, the parties agree as
follows:
1. TERM OF EMPLOYMENT. The Bank employs the Executive and the Executive
accepts employment with the Bank for a three year period beginning January 1,
1991 and concluding as of the close of business on December 31, 1993.
2. POSITION AND DUTIES. The Executive shall serve as the Chairman of the
Board of Directors of the Corporation and the Bank, reporting to the
Shareholders and to the Directors of the Corporation and the Bank, and shall
have supervision and control over, and responsibility for, the direction of the
Corporation and the Bank, and shall have such other powers and duties as may
from time to time be prescribed by the Board of Directors
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of the Corporation and/or the Bank, provided that such duties are consistent
with the Executive's position as the Chairman of the Board of Directors.
3. ENGAGEMENT IN OTHER EMPLOYMENT. The Executive shall devote substantially
all his working time, ability and attention to the business of the Corporation
and/or the Bank during the term of this Agreement. The Executive shall notify
the Boards of Directors of the Corporation and the Bank in writing before the
Executive engages in any other business or commercial activities, duties or
pursuits, including, but not limited to, directorships of other companies. Under
no circumstances may the Executive engage in any business or commercial
activities, duties or pursuits which compete with the business or commercial
activities of the Corporation or the Bank, nor may the Executive serve as a
director or officer or in any other capacity in a company which competes with
the Corporation and/or the Bank.
4. COMPENSATION.
(a) ANNUAL DIRECT SALARY. As compensation for services rendered the Bank
under this Agreement, the Executive shall be entitled to receive from the Bank
an annual direct salary of not less than $70,000 per year, (the "Annual Direct
Salary") payable in substantially equal monthly installments (or such other more
frequent intervals as may be determined by the Board of Directors of the Bank as
payroll policy for senior executive officers) prorated for any partial
employment period. The Annual Direct Salary shall be reviewed by the Board of
Directors on each anniversary of this Agreement and shall be adjusted in
accordance with the prevailing market value of the position and the current pay
increase practices of the Corporation and the Bank. In no event shall the Annual
Direct Salary be decreased.
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(b) INCENTIVE COMPENSATION. The Executive shall ensure that Business Plans
delineating the financial and business goals of the Corporation and the Bank are
established prior to the start of each fiscal year. The Business Plans shall be
presented to and reviewed promptly by the appropriate Boards of Directors, which
may in their sole discretion alter or modify the Business Plans prior to
adoption. Upon adoption of the Business Plans, the Boards of Directors shall
also establish an Incentive Compensation Plan for the Executive. The Incentive
Compensation Plan shall provide an incentive pay opportunity consistent with the
practices of similar organizations in rewarding their senior executives. The
incentive award will be paid to the Executive within ninety (90) days following
the end of the fiscal year if the financial and business goals of the
Corporation and the Bank are met for that year. As part of the Incentive
Compensation Plan, the Boards of Directors in their sole discretion may also
provide for payment of less than the full yearly bonus in the event some but not
all of the financial and business goals of the Corporation and/or the Bank are
met for the year in question.
(c) ADDITIONAL BONUS. The Executive shall also be entitled to an additional
bonus amount sufficient on an after-tax basis to pay the premium on his
supplemental Long-term Disability insurance policy. This bonus amount will be
payable on each anniversary of this agreement on which the Executive is employed
by the Corporation or the Bank.
(d) DIRECTOR'S FEES. The Executive, in his capacity as a member of the
Board of Directors of the Corporation and/or the Bank, will be eligible to
receive fees for those services equal in amount to fees received by outside
Directors of the organizations.
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5. FRINGE BENEFITS, VACATION, EXPENSES, AND PERQUISITES.
(a) EMPLOYEE BENEFIT PLANS. The Executive shall be entitled to participate
in or receive benefits under all Corporate and/or Bank employment benefit plans
(to the extent that the employment benefit plans of the Corporation and Bank are
not duplicative), including but not limited to any profit-sharing plan, savings
plan, equity participation plan, supplemental retirement income, medical or
health-and-accident plan or arrangement made available by the Corporation and/or
the Bank to its executives and key management employees, subject to and on a
basis consistent with terms, conditions and overall administration of such plans
and arrangements. The Executive shall also be entitled to the following
benefits, at minimum:
(i) Retirement Income Plan: The Executive shall be entitled to
participate in the group retirement income plan of the Bank and shall become
vested in such plan according to the schedule provided in the plan document.
(ii) Life Insurance: In addition to standard group life insurance
provisions, the Corporation and the Bank shall provide and maintain life
insurance for the Executive, if he qualifies therefore on a standard
underwriting basis, which life insurance shall at all times be maintained at an
amount equal to three times the Executive's Annual Direct Salary to a maximum of
$500,000.
(iii) Disability Insurance: In addition to standard group benefit
provisions, the Corporation and the Bank shall make available a disability
insurance policy for purchase by the Executive, provided the Executive qualifies
as a medically acceptable risk to the issuing company on a standard underwriting
basis, which shall provide that in the event the Executive is unable to perform
his duties hereunder as a result of incapacity due to physical or mental
illness, he shall be entitled to receive benefits from all sources
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(Social Security, group LTD and supplemental LTD) equal to 75% of his annual
salary until he reaches the age of 65 or dies, whichever occurs first. The
Corporation and the Bank shall continue to pay to the Executive his Annual
Direct Salary during any applicable "elimination (waiting) period," but not to
exceed ninety (90) days, under the disability insurance plan purchased by the
Executive.
(b) The Executive shall be entitled to the number of paid vacation days in
each calendar year determined by the Corporation and the Bank from time to time
for its senior executive officers, but not less than four (4) weeks in any
calendar year (prorated in any calendar year during which the Executive is
employed hereunder for less than the entire such year in accordance with the
number of days in such calendar year during which he is so employed). The
Executive shall also be entitled to all paid holidays given by the Corporation
and the Bank to its senior executive officers.
(c) During the term of his employment hereunder, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
him (in accordance with the policies and procedures established by the Boards of
Directors of the Corporation and the Bank for its senior executive officers) in
performing services hereunder, provided that the Executive properly accounts
therefore in accordance with Corporation and Bank policy.
(d) During the term of employment hereunder, the Executive shall be
entitled to the use of a Corporation/Bank purchased or leased automobile of the
following make and model, or its equal: Lincoln Town Car. The Executive shall
also be entitled to reimbursement for all operating expenses of the automobile,
including but not limited to oil, gasoline, maintenance, repairs and insurance.
Additionally, the Executive shall be
5
entitled to receive such other perquisites and fringe benefits as the Directors
of the Corporation and the Bank deem appropriate in their sole direction.
(e) Nothing paid to the Executive under any benefit plan or arrangement
shall be deemed to be in lieu of compensation to the Executive hereunder.
6. OFFICES. The executive agrees to serve as Chairman of the Board of
Directors of the Corporation and Chairman of the Board of Directors of the Bank,
provided, however, the Executive shall not be required to serve in such
additional offices or as a director of the Corporation, Bank or any subsidiary
if such service would expose him to adverse financial consequences.
7. INDEMNIFICATION. The Corporation and Bank shall indemnify the Executive,
to the fullest extent permitted by Pennsylvania law, with respect to any
threatened, pending or completed action, suit or proceeding, brought against him
by reason of the fact that he is or was a director, officer, employee or agent
of Corporation or Bank or is or was serving at the request of Corporation or
Bank as a director, officer, employee or agent of another person or entity. To
the fullest extent permitted by Pennsylvania law, the Corporation and Bank shall
in advance of final disposition pay any and all expenses incurred by Executive
in connection with any threatened, pending or completed action, suit or
proceeding with respect to which Executive may be entitled to indemnification
hereunder. Executive's right to indemnification provided herein is not exclusive
of any other rights of indemnification to which Executive may be entitled under
any bylaw, agreement, vote of shareholders or otherwise, and shall continue
beyond the term of this Agreement. The Corporation and/or the Bank shall use its
best efforts to obtain insurance coverage for the Executive under an insurance
policy covering officers and directors of the
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Corporation and/or the Bank against lawsuits, arbitrations or other proceedings,
however, nothing herein shall be construed to require the Corporation and/or the
Bank to obtain such insurance if the Board of Directors of the Corporation
and/or the Bank determine that such coverage cannot be obtained at a
commercially reasonable price.
8. UNAUTHORIZED DISCLOSURE. During the period of his employment hereunder,
or at any later time, the Executive shall not, without the written consent of
the Board of Directors of the Corporation and/or the Bank or a person authorized
thereby, knowingly disclose to any person, other than an employee of the
Corporation or the Bank or a person to whom disclosure is reasonably necessary
or appropriate in connection with the performance by the Executive of his duties
as an executive of the Corporation or the Bank, any material confidential
information obtained by him while in the employ of the Corporation or the Bank
with respect to any of the Corporation's or the Bank's services, products,
improvements, formulas, designs or styles, processes, customers, methods of
distribution or any business practices the disclosure of which he knows will be
materially damaging to the Corporation or the Bank; provided, however, that
confidential information shall not include any information known generally to
the public (other than as a result of authorized disclosure by the Executive) or
any information of a type not otherwise considered confidential by persons
engaged in the same business or a business similar to that conducted by the Bank
or the Corporation.
9. RESTRICTIVE COVENANT. The Executive covenants and agrees as follows: the
Executive shall not directly or indirectly, within the marketing area of the
Bank (defined as an area within ten miles of the main office), or any future
marketing area of the Bank (defined as an area within ten miles of any branch
office) begun during the
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Executive's employment under the terms of this Agreement, enter into or engage
generally in direct or indirect competition with the Bank in the business of
banking or any banking related business, either as an individual on his own or
as a partner or joint venturer, or as a director, officer, shareholder, employee
or agent for any person, for a period of one year after the date of termination
of his employment if (i) the Executive's employment is terminated for Cause by
the Bank pursuant to paragraph 10(c) of this Agreement, or (ii) such termination
is the result of a resignation by the Executive for other than a "Good Reason"
under paragraph 10(d) of this Agreement. The existence of any immaterial claim
or cause of action of the Executive against the Bank, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
Bank of this covenant. The Executive agrees that any breach of the restrictions
set forth in this paragraph will result in irreparable injury to the Bank for
which it shall have no adequate remedy at law and the Bank shall be entitled to
injunctive relief in order to enforce the provisions hereof. In the event that
this paragraph shall be determined by any court of competent jurisdiction to be
unenforceable in part by reason of it being too great a period of time or
covering too great a geographical area, it shall be in full force and effect as
to that period of time or geographical area determined to be reasonable by the
court.
10. TERMINATION.
(a) The Executive's employment hereunder shall terminate upon his death.
(b) If the Executive becomes permanently disabled (as certified by the
Bank's group LTD carrier and the Executive's supplemental LTD carrier or in the
event these organizations cannot agree, they shall designate a licensed
physician whose decision shall be binding upon the parties) because of sickness,
physical or mental disability, or any other
8
reason, and is unable to perform or complete his duties under this Agreement for
a period of 90 consecutive days (or time equal to the elimination period), the
Bank shall have the option to terminate this Agreement by giving written notice
of termination to the Executive. Such termination shall be without prejudice to
any right the Executive has under the disability insurance program maintained by
the Bank.
(c) The Corporation and the Bank may terminate the Executive's employment
hereunder for Cause. For the purposes of this Agreement, the Bank shall have
"Cause" to terminate the Executive's employment hereunder upon (1) the willful
failure by the Executive to substantially perform his duties hereunder, other
than any such failure resulting from the Executive's incapacity due to physical
or metal illness, or (2) the willful engaging by the Executive in gross
misconduct materially injurious to the Corporation or the Bank, or (3) the
willful violation by the Executive of the provisions of paragraphs 3 or 8 hereof
after notice from Corporation or Bank and a failure to cure such violation
within 30 days of said notice, or if said violation cannot be cured within 30
days, within a reasonable time thereafter if the Executive is diligently
attempting to cure the violation, or (4) the gross negligence of the Executive
in the performance of his duties or (5) receipt of a final written directive or
order of any governmental body or entity having jurisdiction over the Bank
requiring termination or removal of the Executive as Chairman of the Board or
Director of the Corporation and the Bank.
(d) The Corporation and the Bank may choose not to renew the Executive's
contract, without cause or reason. Such termination will not require the
Corporation or the Bank to provide the Executive with written notice of
nonrenewal.
9
(e) The Executive may terminate his employment hereunder (1) if his health
should become impaired to an extent that it makes continued performance of his
duties hereunder hazardous to his physical or mental health or his life, or (2)
for Good Reason. The term "Good Reason" shall mean (i) any assignment to the
Executive, without his consent, of any duties other than those contemplated by,
or any limitation of the powers of the Executive not contemplated by, Section 2
hereof, or (ii) any removal of the Executive from or any failure to reelect the
Executive to any of the positions indicated in Section 2 hereof, except in
connection with termination of the Executive's employment for Cause, or (iii) a
reduction of the Executive's rate of compensation as provided in Section 4
hereof, or (iv) failure of the Corporation or the Bank to comply with Section 5
hereof, (v) any other material breach by Corporation or Bank of this Agreement
or (vi) any Change of Control (as defined herein).
11. PAYMENTS UPON TERMINATION.
(a) If the Executive's employment shall be terminated because of death,
disability or for Cause, the Corporation and the Bank shall pay the Executive
his full Annual Direct Salary through the date of termination at the rate in
effect at the time of termination and any other amounts owing to Executive at
the date of termination, and the Corporation and the Bank shall have no further
obligations to the Executive under this Agreement.
(b) If the Executive's employment is terminated by the Corporation and the
Bank (other than pursuant to paragraphs 10(a) or 10(b) or 10(c) hereof), or if
the Executive shall terminate his employment for Good Reason, excluding Change
of Control, then the Corporation and the Bank shall pay the Executive his full
Annual Direct Salary from the date of notice (termination), for a total of
twelve (12) months; provided, however, the
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Executive shall make reasonable efforts to mitigate damages by seeking other
comparable employment. In such event, the Corporation and the Bank shall also
maintain in full force and effect, for the continued benefit of the Executive
for the full salary continuation period, all employee benefit plans and programs
to which the Executive was entitled prior to the date of termination if the
Executive's continued participation is possible under the general terms and
provisions of such plans and programs. In the event that the Executive's
participation in any such plan or program is barred, the Executive shall be
entitled to receive an amount equal to the annual contribution, payments,
credits or allocations made by the Corporation or the Bank to him, to his
account or on his behalf under such plans and programs from which his continued
participation is barred except that if Executive's participation in any health,
medical, life insurance, or disability plan or program is barred, Corporation
and Bank shall obtain and pay for, on Executive's behalf, individual insurance
plans, policies or programs which provide to Executive health, medical, life and
disability insurance coverage which is equivalent to the insurance coverage to
which Executive was entitled prior to the date of termination.
(c) If the Executive's employment is terminated by the Corporation and the
Bank (other than pursuant to paragraphs l0(a) or l0(b) or l0(c) hereof), or if
the Executive shall terminate this employment for Good Reason within twelve (12)
months following Change of Control (as defined herein), then the Corporation or
the Bank shall pay the Executive his full Annual Direct Salary from the date of
notice (termination) for the remaining term of this agreement or twenty-four
(24) months, whichever is longer. The Corporation and the Bank will also
maintain benefit coverages for the Executive during this time period as
specified in paragraph 11(b) above.
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(d) In the event of termination or nonrenewal of Executive's employment
other than for Cause, Executive shall have the right to sell to the Corporation
and the Bank, and upon exercise of such right the Corporation and Bank shall be
required to purchase, all of his shares of Corporation stock or Bank stock which
Executive desires to sell (the "Put Stock") for their Fair Market Value (as
determined below). It shall be within Corporation's and Bank's discretion as to
which of them shall purchase the Put Stock. Executive may exercise his right to
sell the Put Stock by delivering written notice of exercise to Corporation and
Bank, which exercise may be conditioned upon the price to be paid for the Put
Stock.
(e) The "Fair Market Value" of the Put Stock shall be determined by two
appraisers, one of whom shall be appointed by the Corporation or the Bank, and
one of whom shall be appointed by the Executive. In the event the two appraisers
cannot agree upon the Fair Market Value, they shall select a third appraiser to
act with them, and a decision of the majority of the appraisers shall be final
and binding. Each party shall bear the expense of the appraiser it chooses, and
if it becomes necessary to employ a third appraiser, that expense shall be borne
equally by the parties. All appraisers shall be independent and shall be
experienced in appraising banks. In determining the fair market value, the
appraisers shall not consider any legal restrictions on sale of the Put Stock,
but instead shall value the Put Stock as though it were freely traded in a
public market with adequate trading volume.
(f) If the determination of the Fair Market Value is satisfactory to
Executive, he shall notify Corporation of his exercise of his right hereunder,
stating the number of shares he wishes to sell. Corporation shall then notify
Executive, within ten (10) days following
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Executive's notice, which of Corporation or Bank will purchase the Put Stock.
Such notice from Corporation shall set forth a time and place for closing of the
purchase of the Put Stock, which shall take place no later than five (5) days
after such notice. At the closing, Executive shall deliver the certificate
representing the Put Stock, duly endorsed for transfer in block, free and clear
of all liens and encumbrances, against delivery by the designated purchaser of
the Fair Market Value of the Put Stock paid by bank or certified check.
12. DAMAGES FOR BREACH OF CONTRACT. In the event of a breach of this
Agreement by either the Corporation and the Bank or Executive resulting in
damages to either party, that party may recover from the party breaching the
Agreement any and all damages that may be sustained.
13. DEFINITION OF CHANGE OF CONTROL. For purposes of this Agreement, the
term "Change of Control" shall mean:
(a) the acquisition of the beneficial ownership of at least 40% of the
Corporation's and/or the Bank's voting securities or all or substantially all of
the assets of the Corporation and/or the Bank by a single person or entity or a
group of affiliated persons or entities, or
(b) the merger, consolidation or combination of the Corporation and/or the
Bank with an unaffiliated corporation in which the Directors of the Corporation
and/or the Bank, immediately prior to such merger, consolidation or combination
constitute less than a majority of the Board of Directors of the surviving, new
or combined entity, or
(c) during any period of two (2) consecutive years during the term of the
Agreement, individuals who at the beginning of such period constitute the Board
of
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Directors of the Corporation or the Bank cease for any reason to constitute at
least a majority thereof.
14. DEFINITION OF DATE OF CHANGE OF CONTROL. For purposes of this
Agreement, the date of Change of Control shall mean:
(a) the first date on which a single person and/or entity, or group of
affiliated persons and/or entities, acquire the beneficial ownership of 40% more
of the Corporation's and/or the Bank's voting securities, or
(b) the date of the transfer of all or substantially all of the
Corporation's and/or the Bank's assets, or
(c) the date on which a merger, consolidation or combination is
consummated, as applicable, or
(d) the date on which individuals who formerly constituted a majority of
the Board of Directors of the Corporation or the Bank ceased to be a majority.
15. OBLIGATIONS OF CORPORATION. The Corporation expressly agrees that
should the Bank for any reason be unable to or shall otherwise not perform its
obligations under this Agreement, the Corporation shall pay to the Executive the
compensation to which the Executive is entitled under this Agreement and to
perform all other duties which the Bank may have under this Agreement, whether
or not the Executive is employed by the Corporation on the date of execution of
this Agreement.
16. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in the agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
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If to the Executive: Owen O. Freeman, Jr.
32 South Chancellor Street
Newtown, Pennsylvania 18940
If to the Bank: Commonwealth State Bank
Friends Lane and Route # 332
Newtown, Pennsylvania 18940
Attn: Chairman, Compensation Committee
If to the Corporation: Penncore Financial Services Corporation
Friends Lane and Route # 332
Newtown, Pennsylvania 18940
Attn: President
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
17. SUCCESSORS. This Agreement shall inure to the benefit of and be binding
upon the Executive, the Corporation and any successor to the Corporation, and
the Bank and any successor to the Bank.
18. ENFORCEMENT OF SEPARATE PROVISIONS. Should provisions of this Agreement
be ruled unenforceable for any reasons, the remaining provisions of this
Agreement shall be unaffected thereby and shall remain in full force and effect.
19. AMENDMENT. This Agreement may be amended or cancelled only by mutual
agreement of the parties in writing without the consent of any other person and,
so long as the Executive lives, no person other than the parties hereto, shall
have any rights under or interest in this Agreement or the subject matter
hereof.
20. ATTORNEY'S FEES AND COSTS. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be
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entitled to reasonable attorney's fees, costs, and necessary disbursements in
addition to any other relief that may be proper.
21. PAYMENT OF MONEY DUE DECEASED EXECUTIVE. If the Executive dies prior
the expiration of the term of employment, any monies that may be due him from
the Corporation or the Bank under this Agreement as of the date of death shall
be paid to the executor, administrator, or other personal representative of the
Executive's estate.
22. LAW GOVERNING. This Agreement shall be governed by an construed in
accordance with the laws of the Commonwealth of Pennsylvania.
23. ENTIRE AGREEMENT. This Agreement supercedes any and all agreements,
either oral or in writing, between the parties with respect to the employment by
the Executive by the Corporation and the Bank, and this Agreement contains all
the covenants and agreements between the parties with respect to the employment.
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ATTEST: PENNCORE FINANCIAL SERVICES
/s/ By: /s/
- ---------------------------- --------------------------------
Secretary Treasurer President
COMMONWEALTH STATE BANK
ATTEST:
/s/ By: /s/
- ---------------------------- --------------------------------
Secretary/Treasurer Chairman, Compensation Committee
WITNESS:
/s/ /s/ Owen O. Freeman, Jr.
- ---------------------------- --------------------------------
Owen O. Freeman, Jr.
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