CONSULTING AGREEMENT
BETWEEN
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and
THE HERITAGE BANK and HERITAGE BANCORP, INC.
This Consulting Agreement (hereinafter the "Agreement") is made this 3rd day of
May, 1999 by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, residing at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇.▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ (hereinafter "Consultant") and THE HERITAGE BANK, with its principal
offices located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, a
Virginia corporation (hereinafter the "Bank"), and HERITAGE BANCORP, INC. (the
"Company"). WHEREAS, Consultant has experience in administration and marketing
in connection with banks and financial institutions; and
WHEREAS, the Bank and Company desire to hire Consultant as an independent
consultant; and
WHEREAS, Consultant is willing to act as a consultant to the Bank and
Company in accordance with the following terms, conditions and provisions:
W I T N E S S E T H :
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Consulting Services. Effective as of the date hereof, the Bank and Company
retain Consultant to render, and Consultant agrees to render, to the Bank and
Company, Services (hereinafter the "Services"), as an independent consultant in
an advisory capacity for and relating to the operation and promotion of the Bank
and Company's business, upon the reasonable request from time to time, and
pursuant to the direction of the Board of Directors of the Bank and Company, or
their designees.
2. Place of Work. Consultant shall use all of her best efforts and shall render
the Services at such time or times and such place or places as are mutually
agreeable to the parties hereto.
3. Term of Agreement. This Agreement shall be effective as of the date and year
first above written (hereinafter the "Commencement Date") and shall terminate
September 30, 1999, unless terminated earlier upon the mutual agreement of the
parties.
4. Fees. The Bank shall pay Consultant a fee of Ten Thousand Dollars
($10,000.00) per month, in twice-monthly payments during the Term, on the 15th
and 30th day of each month. Consultant's right to receipt of fees hereunder is
fully vested and shall be payable whether the Bank or Company require any
services to be performed under the provisions of paragraph 1 hereof.
The Consultant shall also participate in all retirement, welfare, life and
health insurance, and other benefit plans to include vacation accrual or
programs of the Bank to the extent allowable for a Consultant under the Bank's
plans, with the exception of any stock option plans, now or hereafter applicable
to those classes of employees which include senior executives of the Bank;
provided (i) that during any period during the Term that the Consultant is
subject to a disability, meaning the inability of Consultant due to illness,
accident, or any other physical or mental incapacity to fulfill her obligations
hereunder for a period of ninety (90) consecutive days during the terms hereof,
the amount of Consultant's compensation under Section 4 hereof shall be reduced
by the sum of the amounts, if any, paid to the Consultant for the same period
under any disability benefit or pension plan of the Bank or the Company.
5. Expense Allowance. Consultant shall be provided an expense allowance of One
Thousand Two Hundred Fifty & 00/100 Dollars ($1,250.00) per month to cover her
expenses in promoting the business of the Bank and Company during the term of
the Consulting Agreement.
6. Confidential Nature of Services. Consultant will not, during or after the
Term, divulge to anyone other than the Board of Directors of the Bank or
Company, or their designees, except as necessary in the performance of the
Services, or make any use of, any information or knowledge relating to the
Services and/or the Bank or Company which shall have been obtained by Consultant
during the term of this Agreement and which shall not be generally known or
recognized as standard practice to anyone in the Bank or Company's businesses.
7. Reports of Work. Consultant shall submit reports to the Board of Directors of
the Bank and Company, upon their reasonable request therefor, of all Services
performed by Consultant and the results or findings thereof. Consultant shall
from time to time at the Bank or Company's request, and in all events upon the
expiration of the Term, deliver to the Bank or Company all working papers and
other documents and materials that have been prepared or developed by Consultant
or made available to Consultant in connection with the Services.
8. Nature of Relationship. It is understood that in performing the Services
Consultant is acting as an independent Consultant and contractor and not as an
employee, agent or representative of the Bank or Company, and as such will be
responsible for reporting and paying any federal and state taxes owing on the
Fees paid. Consultant shall not take any action, unless expressly authorized in
writing by the Board of Directors of the Bank or Company, as an agent of the
Bank or Company or enter into any agreements or incur any obligations on the
Bank or Company's behalf or commit it in any manner whatsoever.
9. Amendment. No modification, amendment, addition to, or termination of this
Agreement, nor waiver of any of its provisions, shall be valid or enforceable
unless in writing and signed by both parties.
10. Notices. All notices under this Agreement shall be in writing and shall be
served by personal service, or registered or certified mail, return receipt
requested.
Notice by mail shall be addressed to each party as follows:
To Bank: The Heritage Bank
Attn: Board of Directors
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
To Company: Heritage Bancorp, Inc.
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Consultant: ▇▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇.▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
.
11. Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Virginia. 12. Severability. In the event that any portions,
articles, or sections of this Agreement are rendered invalid by the decision of
any court or by the enactment of any law, ordinance or regulation, such
portion(s), article(s) or section(s) of this Agreement will be deemed to have
never been included herein and the balance of this Agreement shall continue in
effect in accordance with it terms.
13. Entire Agreement. This document contains the entire Agreement between the
parties with respect to the performance by Consultant of consulting duties on
behalf of the Company.
WITNESS the following signatures as of the day and year first above written.
CONSULTANT:
-------------------------
Date 5/3/99
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
BANK:
THE HERITAGE BANK
---------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Date 5/3/99
COMPANY:
HERITAGE BANCORP, INC.
---------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Date 5/3/99
AGREEMENT
THIS AGREEMENT entered into this _3rd___ day of May, 1999 by and between THE
HERITAGE BANK, HERITAGE BANCORP, INC. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
WHEREAS, the parties have agreed on all terms of a proposed Employment
Agreement in accordance with attached Exhibit A; and
WHEREAS, the parties intend to execute such Employment Agreement provided
▇▇. ▇▇▇▇▇ successfully removes any covenants not to compete or other
restrictions which would inhibit her from executing and performing the
Employment Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency which is expressly acknowledged, the parties hereto agree as
follows:
1. It is expressly agreed and understood that the Employment Agreement attached
hereto as Exhibit A shall be executed by all parties within three days of the
time that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ is relieved of any and all covenants not to compete,
or any other restraints inhibiting her ability to execute and perform the
Employment Agreement.
2. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ agrees to promptly notify The Heritage Bank of her ability to
execute and perform the Employment Agreement and will provide The Heritage Bank
with written evidence of the removal or expiration of such impediments upon her
receipt thereof.
3. In the event ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ is not in a position to legally able to execute
and perform the Employment Agreement in accordance with paragraph 1 above,
within 160 days of the date of this Agreement, then at the sole option of either
Heritage Bank or Heritage Bancorp, Inc., this Agreement may be declared null and
void , at which time neither party will have any liability or obligation under
this Agreement or the Employment Agreement.
4. The parties agree that their Agreement of March 26___, 1999 is hereby null
and void and superceded by this Agreement.
WITNESS THE FOLLOWING SIGNATURES AND SEALS.
THE HERITAGE BANK
---------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ [SEAL]
Date 5/3/99
HERITAGE BANCORP, INC.
---------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ [SEAL]
Date 5/3/99
____________________[SEAL]
Date 5/3/99
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made by and between
HERITAGE BANK (the "Bank"), HERITAGE BANCORP, INC. (the "Company") and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ (the "Executive") this day of October, 1999.
W I T N E S S E T H :
WHEREAS, the Bank and the Company wish to employ the Executive as
President, Chief Executive Officer and to elect her to their respective Boards
of Directors; and
WHEREAS, the Board of Directors of the Bank (the "Bank Board") and the
Board of Directors of the Company (the "Company Board") desire to provide for
the employment of the Executive and to establish terms and conditions of the
Executive's employment which the Bank Board and the Company Board have
determined will encourage the dedication of the Executive to the Bank and the
Company and will promote the best interests of the Bank, the Company and its
stockholders.
WHEREAS, the Executive is willing to be employed by the Bank and the
Company on the terms and conditions herein provided.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
contained herein, the recitals set forth above, which are hereby incorporated by
reference herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Employment.
The Bank and the Company shall employ the Executive, and the Executive shall
serve the Bank and the Company, as President and Chief Executive Officer ("CEO")
upon the terms and conditions set forth herein. The Executive shall be elected
to the Bank Board and to
the Company Board and shall serve on all appropriate committees thereof as
designated by the respective Boards. Should Executive's employment hereunder
terminate for any reason whatsoever, she will immediately resign from such Board
of Directors. The Executive shall have such authority and responsibilities
consistent with her position and which may be set forth in the Bank's or the
Company's Bylaws or assigned by the Bank Board or the Company Board from time to
time. The Executive shall devote her full business time, attention, skill and
efforts to the performance of her duties hereunder, except during periods of
illness or periods of vacation and leaves of absence, consistent with Bank
and/or Company policy. The Executive may devote reasonable periods to service as
a director or advisor to other organizations, to charitable and community
activities, and to managing her personal investments, provided that such
activities do not materially interfere with the performance of her duties
hereunder and are not in conflict or competitive with, or adverse to, the
interests of the Bank and the Company.
2. Term.
Unless earlier terminated as provided herein, the Executive's employment under
this Agreement shall be for an initial term (the "Initial Term") of three (3)
years, commencing as of October , 1999 and terminating on October , 2002;
provided, however, this Agreement shall be automatically renewed after the
Initial Term for additional terms of two (2) years ("Renewal Terms") unless
either party gives the other written notice of non-renewal not later than six
(6) months prior to the expiration of the Initial Term or any Renewal Term.
3. Compensation and Benefits.
3.1 Base Compensation. The Bank shall pay the Executive a base annual salary
("Base Compensation") at a rate of One Hundred Twenty Thousand and No/100
Dollars ($120,000.00) per annum commencing October , 1999, in accordance with
the salary payment practices of the Bank. The Bank Board (upon recommendation of
its Compensation Committee) shall review the Executive's Base Compensation at
least annually commencing for calendar year 2002 and each year thereafter and
may increase (but shall not decrease) the Executive's Base Compensation if it
determines in its sole discretion that an increase is appropriate. In making
such determination, the Bank Board shall review peer group CEO compensation, and
such other factors as the parties may agree upon; provided however, Base
Compensation shall be increased by at least the Consumer Price Index. As used
herein, the Term "Consumer Price Index" shall mean the "United States Bureau of
Labor Statistics, Consumer Price Index for Urban Wage Earners and Clerical
Workers" all items, Washington, D.C. standard Metropolitan Statistical Area
Average (1982-1984 = 100.00) CPI-W, and any revisions of or substitutes for that
Index. No additional compensation shall be paid to the Executive for her
employment by the Company except as set forth herein.
3.2 Short Term Performance Bonus. Provided the Bank achieves appropriate
regulatory ratings for safety and soundness, and based upon the performance of
the Bank in relation to targets for annual net profit after provision for
federal and state income taxes as set forth in the Bank's year-end Call report
opposite the caption "Net Income" on line 12 and excluding (i) tax loss
carryforward benefits and (ii) all other real estate properties owned as the
result of foreclosure or conveyance in lieu of foreclosure held by the Bank or
Company at the time this Agreement is executed regardless of the disposition
dates of such properties ("Profits") and asset growth established by the Bank
Board annually, in consultation with the Executive, the Executive shall be
entitled to receive a short term performance bonus ("Short Term Performance
Bonus"), in cash, as a percentage of Base Compensation, payable within thirty
(30) days after the completion of the year-end financial statements. The Short
Term Performance Bonus shall be pro-rated for the portion of the year Executive
is employed for any year in which Executive is not employed through the last day
of such year. The 1999 targets for Profits and asset growth are set forth below
and shall be applied to the entire 1999 calendar year as though the Executive
had been employed for the entirety of such year. These targets shall be reviewed
and adjusted annually by the Bank Board in consultation with the Executive
following receipt of the year-end financial statement. Profit growth and asset
growth shall each carry a fifty percent (50%) weighted value and a percentage of
salary payout prorated on the basis of the percentage of performance level based
upon a Profit achieved of Six Hundred Thousand and No/100 Dollars ($600,000.00)
as a 1999 base performance goal of (100%), and an asset growth base of
Sixty-Seven Million and No/100 Dollars ($67,000,000.00) as the 1999 asset growth
goal. The 1999 Short Term Bonus shall be computed as follows
Performance Achieved Payout Profit Achieved Asset Growth Achieved
90% 10% $540,000.00 $60,300,000.00
100% 15% 600,000.00 67,000,000.00
110% 20% 660,000.00 73,700,000.00
125% 30% 750,000.00 83,750,000.00
140% 40% 840,000.00 93,800,000.00
155% 50% 930,000.00 103,850,000.00
170% 60% 1,020,000.00 112,500,000.00
For each one and one-half percent (1 1/2%) of Performance Achieved above one
hundred seventy percent (170%), Payout shall be increased by one percent (1%).
For example, if Base Compensation for a given year is One Hundred Twenty
Thousand and No/100 Dollars ($120,000.00) and the Executive's performance level
is one hundred percent (100%) of asset growth achieved and one hundred ten
percent (110%) of Profit achieved, the Short Term Performance Bonus would be
Twenty-One Thousand and No/100 Dollars ($21,000.00) calculated as follows:
Target Base Compensation Weight Payout Bonus
----------- ------------ ------ ------ -----
Asset Growth $120,000.00 X .5 X 15%= $ 9,000.00
Earnings 120,000.00 X .5 X 20%= 12,000.00
---------
Total Bonus $21,000.00
3.3 Long Term Performance Bonus - Stock Options. Provided the Bank achieves
appropriate regulatory ratings for safety and soundness, and based upon the
performance of the Bank in relation to targets for earnings and asset growth
established by the Bank Board, annually, in consultation with the Executive, the
Executive shall be entitled to receive long term performance bonus of stock
options ("Long Term Performance Bonus"), for a dollar amount of shares
calculated as a percentage of Base Compensation, to be awarded within thirty
(30) days after the completion of the year-end financial statements. The Long
Term Performance Bonus shall be prorated for the portion of the year that the
Executive is employed for any year in which the Executive is not employed
through the last day of such year. The 1999 targets for Profit and asset growth
are set forth below and shall be applied to the entire 1999 calendar year as
though the Executive had been employed for the entirety of such year. These
targets shall be reviewed and adjusted annually by the Bank Board in
consultation with the Executive following receipt of the year-end financial
statements. Profit growth and asset growth shall each carry a fifty percent
(50%) weighted value and the payout being prorated on the basis of the
percentage of performance level achieved as set forth in Paragraph 3.2. The 1999
Long Term Bonus shall be computed as follows:
Performance Level Payout Percentage
90% 25%
100% 50%
110% 75%
125% 100%
140% 125%
155% 150%
170% 175%
For each one and one-half percent (1 1/2%) of increase in performance level
above one hundred seventy percent (170%), the Payout Percentage shall increase
two and one-half percent (2 1/2%).
Such stock options shall constitute incentive stock options defined under
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), and
shall be issued under the Employee Incentive Stock Option Plan, as amended, or
any successor stock option plan or plans (the "Plan"), at an exercise price
equal to the fair market value of the underlying shares of the issuance date,
under terms and conditions substantially in the form of the Stock Option Grant
Agreement attached hereto as Exhibit "A".
For example, if Base Compensation for a year is One Hundred Twenty Thousand and
No/100 Dollars ($120,000.00) and at the time of the award the price of the
shares of common stock is Five and No/100 Dollars ($5.00) per share, and the
Executive's performance level was one hundred percent (100%) of asset growth and
one hundred ten percent (110%) of Profit growth, the Long Term Performance Bonus
would be an award of the option to purchase Fifteen Thousand (15,000) shares at
Five and No/100 Dollars ($5.00) per share, calculated as follows:
Payout
Target Base Compensation Percentage Weight Bonus
------ ----------------- ---------- ------ -----
Asset Growth $120,000.00 X .50 X .5 = $30,000.00
Earnings 120,000.00 X .75 X .5 = 45,000.00
---------
Total $75,000.00
Total: $75,000.00 / $5.00 per share = 15,000 option shares
3.4 Grant of Option Upon Execution. Upon execution of this Agreement, the
Company shall grant to the Executive an option ("Execution Option") to purchase
five thousand (5,000) shares of stock of the Company at an exercise price of
fair market value as of the date of execution. The Execution Option shall vest
immediately as to one hundred percent (100%) of the shares subject to such
Option. Such stock option shall constitute an incentive stock option under Code
Section 422, if the exercise price equals or exceeds the fair market value of
the underlying shares at the issuance date, and shall be issued under the Plan,
as amended as of the issuance date, under the terms and conditions contained in
the stock Heritage Bank Employee Incentive Stock Option attached hereto as
Exhibit "A", which shall be executed by the Company and the Executive as of the
date of the execution of this Agreement
Executive shall also receive a signing bonus equal to eight thousand times the
increase in the per share fair market value of Company common stock from May 3,
1999 to October 1, 1999. For example, if in the time period between May 3, 1999
and October 1, 1999 the per share market value increased ten cents, Executive's
bonus would be $800.00.
3.5 Grant of Option Vesting. Upon the execution of this Agreement, the
Company shall grant to the Executive an additional option ("Anniversary Option")
to purchase three thousand (3,000) shares of stock of the Company at an exercise
price of fair market value as of the date of the execution of this Agreement.
The Anniversary Option shall vest upon such first anniversary of Executive's
employment as to one hundred percent (100%) of the shares subject to such
Option. Such stock option shall constitute an incentive stock option under Code
Section 422, if the exercise price equals or exceeds the fair market value of
the underlying shares at the issuance date, and shall be issued under the Plan,
as amended as of the issuance date, under the terms and conditions contained in
the stock Heritage Bank Employee Incentive Stock Option attached hereto as
Exhibit "B", which shall be executed by the Company and the Executive as of the
date of the execution of this Agreement
3.6 Bonus Targets. For the period of January 1, 1999, through December 31,
1999, the budgetary goals for earnings and asset growth in conjunction with the
bonus to be paid to the Executive at the end of the fiscal year shall be the
goals heretofore established by the Bank for that period and reflected in
Paragraph 3.2 above. For the fiscal years commencing January 1, 2000, and
thereafter, the targets to be used shall be established by the Bank Board in
consultation with the Executive and shall be computed in accordance with
Paragraphs 3.2 and 3.3. Such goals shall be established in the first quarter of
each year and shall in all cases reflect earnings and growth goals for the full
calendar year.
3.7 Other Benefit Plans. The Executive shall participate in all retirement,
welfare, life and health insurance, and other benefit plans or programs of the
Bank now or hereafter applicable to the Executive or applicable generally to
employees of the Bank or to a class of employees that includes senior executives
of the Bank; provided (i) that during any period during the Term that the
Executive is subject to a disability (as defined in Paragraph 4.1.2), the amount
of the Executive's compensation provided under this Paragraph 3 shall be reduced
by the sum of the amounts, if any, paid to the Executive for the same period
under any disability benefit or pension plan of the Bank or the Company; and
(ii) that the Executive's participation in the Plan shall be limited to the
participation set forth in Paragraphs 3.4 and 3.5, unless otherwise determined
by the Bank Board and/or the Company Board.
3.8 Executive Expenses. The Bank shall provide to the Executive an annual
executive expense allowance to be applied to Executive's expenses as President
and CEO of the Bank and Company in the amount of Fifteen Thousand and No/100
Dollars ($15,000.00) to cover such costs as the business use of an automobile
owned or leased by the Executive, country club dues of the Executive, disability
insurance and other expenditures as may be reasonably appropriate for one in the
Executive's position.
3.9 Club Initiation Fee. The Bank shall reimburse the Executive for her
final initiation fee for membership, in the name of Executive, in Westwood
Country Club, not to exceed Six Thousand and No/100 Dollars ($6,000.00).
.
3.10 Expense Reimbursement. The Bank shall reimburse the Executive for
travel, seminar, and other expenses related to the Executive's duties which are
incurred and accounted for in accordance with the historic practices of the
Bank.
3.11 Vacation. The Executive shall be entitled to twenty (20) working days
of vacation in each year of her employment.
4. Termination.
4.1 The Executive's employment under this Agreement may be terminated prior
to the end of the Initial Term or any Renewal Term for any of the following:
4.1.1 Upon the death of the Executive.
4.1.2 By the Bank due to the disability of the Executive upon delivery of a
Notice of Termination (as defined in Paragraph 4.2) to the Executive. As used
herein, "Disability" shall mean the inability of the Executive, due to illness,
accident, or any other physical or mental incapacity, to fulfill her obligations
hereunder for a period of ninety (90) consecutive days during the term hereof.
4.1.3 The Bank or the Company may, by written notice to the Executive,
immediately terminate her employment at any time for Just Cause. The Executive
shall have no right to receive compensation or other benefits for any period
after termination for Just Cause. Termination for "Just Cause" shall mean
termination because of, in the good faith determination of the Company Board
and/or the Bank Board, the Executive's personal dishonesty, breach of fiduciary
duty involving personal profit, willful failure to perform stated duties,
repeated refusal to carry out the written directions of the Bank Board or the
Company Board, willful violation of any law, rule or regulation (other than
traffic violations or similar minor offenses), final cease-and-desist order, or
material breach of any provision of this Agreement. No act or failure to act, on
the Executive's part, shall be considered "willful" unless she has acted or
failed to act with an absence of good faith and without a reasonable belief that
the action or failure to act was in the best interest of the Company or the
Bank. Notwithstanding the foregoing, the Executive shall not be deemed to have
been terminated for Just Cause unless there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote of a
majority of either the Company Board or the Bank Board at a meeting of such
Board called and held for such purpose (after reasonable notice to the Executive
and an opportunity for the Executive to be heard before such Board), finding
that, in the good faith opinion of such Board, the Executive was guilty of
conduct constituting Just Cause and specifying the particulars thereof in
detail.
4.1.4 By the Bank or the Company, at any time, in their sole discretion
without Just Cause, upon delivery of a Notice of Termination (as defined in
paragraph 4.2) to the Executive. No Notice of Termination shall be given under
this paragraph unless there shall have been a majority vote of the Company Board
or the Bank Board approving such action at a meeting of such Board called and
held for that purpose.
4.1.5 By the Executive for Just Cause by delivering a Notice of Termination
(as hereinafter defined in paragraph 4.2) stating with particularity the reasons
for the giving of the Notice of Termination. Upon receipt of the Notice of
Termination under this Paragraph 4.1.5, the Bank and/or the Company shall have a
thirty (30) day period within which to cure the circumstances set forth in the
Notice of Termination given by the Executive. As used in this Paragraph 4.1.5,
Just Cause shall mean the occurrence of any of the following events that have
not been consented to in writing by the Executive in advance: (i) the
requirement that the Executive move her personal residence or perform her
principal executive functions, more than thirty-five (35) miles from her primary
office; (ii) the assignment to the Executive of duties and responsibilities
materially different from those normally associated with her position as
referenced in Paragraph 1 hereof; (iii) a failure to elect or re-elect the
Executive to the Bank Board or the Company Board; or (iv) a material diminution
or reduction in the Executive's responsibilities or authority (including
reporting responsibilities) in connection with her employment with the Bank.
4.2 "Notice of Termination" shall mean a written notice of termination from
the Bank or the Executive which specifies an effective date of termination,
indicates the specific termination provision in this Agreement relied upon, and
sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated. A Notice of Termination by the Bank without Just Cause shall be
sufficient if it states that the termination is without Just Cause without
further detail.
4.3 "Termination Date" shall mean, in the case of the Executive's death,
her date of death, or the date upon which the employment of the Executive
ceases.
4.4 If the Executive's employment with the Bank and/or the Company shall be
terminated during the Term (i) by reason of the Executive's death; or (ii) by
the Bank and/or the Company for Disability or Just Cause, the Bank shall pay to
the Executive (or in the case of her death, the Executive's estate) within
fifteen (15) days after the Termination Date a lump sum cash payment equal to
all Base Compensation earned through the Termination Date. If the Termination
Date occurs before Executive has received any Short Term and/or Long Term
Performance Bonuses to which she is entitled for any fiscal year pursuant to the
provisions of Paragraphs 3.2 and 3.3, then Executive shall also be paid the Long
Term and Short Term Performance Bonuses in accordance with the provisions of
Paragraphs 3.2 and 3.3 above. Vested rights of the Executive relating to such
matters as her 401(k) account, ESOP account, qualified pension plan and the like
shall not be affected by such termination, but shall be governed by the terms of
such plans and accounts.
4.5 If the Executive's employment with the Bank and/or the Company shall be
terminated by the Bank and/or the Company without Just Cause (pursuant to
paragraph 4.1.4), the Executive shall be entitled to the following:
4.5.1 The Bank and/or the Company shall pay the Executive (i) in cash
within fifteen (15) days after Termination Date an amount equal to all Base
Compensation earned through the Termination Date; and (ii) in the event that the
Termination Date occurs before Executive has received any Short Term and/or Long
Term Performance Bonuses to which she is entitled for that fiscal year pursuant
to the provisions of Paragraphs 3.2 and 3.3, then Executive shall also be paid
the Long Term and Short Term Performance Bonuses in accordance with the
provisions of Paragraphs 3.2 and 3.3 above.
4.5.2 For the period (the "Continuation Period") from the Termination Date
through the end of the Initial Term or Renewal Term, the Bank or the Company
shall pay to the Executive in cash at the end of each regular pay period of the
Bank, an amount equal to the Base Compensation to which the Executive is
entitled pursuant to Paragraph 3.1 above; provided, however, in no event shall
Executive be paid under this subsection for a period of less than nine (9)
months.
4.5.3 The Bank shall, at its expense, continue for the Continuation Period
on behalf of the Executive and her dependents the life insurance, disability,
medical, dental and hospitalization benefits provided to the Executive as of the
Termination Date on the same basis as such benefits are provided to other
similarly situated executives who continue in the employ of the bank during the
Continuation Period. The coverage and benefits (including deductibles and costs)
provided in this Paragraph 4.5.3 during the Continuation Period shall be no less
favorable to the Executive and her dependents and beneficiaries than the
benefits available to Executive as of the Termination Date and shall provide for
Executive's automobile expenses, office and phone expenses and outplacement
services. The Bank's obligation hereunder with respect to the foregoing benefits
shall be limited to the extent that the Executive obtains any such benefits
pursuant to a subsequent employer's benefit plans, in which case the Bank may
reduce the coverage of any benefits it is required to provide the Executive
hereunder as long as the appropriate coverages and benefits of the combined
benefit plans is no less favorable to the Executive than the coverages and
benefits required to be provided hereunder.
4.5.4 The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise
and no such payment shall be offset or reduced by the amount of any compensation
or benefits provided to the Executive in any subsequent employment except as
provided in Paragraph 4.5.3.
4.6 The severance pay and benefits provided for in this Paragraph 4 shall
be in lieu of any other severance or termination pay to which the Executive may
be entitled under any Bank severance or termination plan, program, practice or
arrangement, except that termination of Executive's employment by the Executive
after the occurrence of a Change in Control, as hereinafter defined, shall be
covered by the provisions of Paragraph 5 below and the provisions of this
Paragraph 4 shall not apply.
4.7 In the event that the Executive terminates this Agreement for Just Cause
pursuant to Paragraph 4.1.5, she shall be entitled to be paid by the Bank, in
cash at the end of each regular pay period of the Bank, an amount equal to the
Base Compensation to which the Executive is entitled pursuant to Paragraph 3.1
above; provided, however, in no event shall Executive be paid under this
subsection for a period of less than nine (9) months.
4.8 This Agreement shall terminate immediately without further liability or
obligation of the Bank or the Company to the Executive (i) if the Bank is closed
or taken over by the Office of the Comptroller of the Currency or other
supervisory authority, including the Federal Deposit Insurance Corporation; or
(ii) if any such supervisory authority should exercise its cease and desist
powers to remove the Executive from office.
4.9 To the extent any provision of this Agreement, with respect to the
Executive's employee stock options, is inconsistent with the Heritage Bancorp
Employee's Incentive Stock Option Plan, the provisions of such plan shall
prevail.
5. Change in Control Provisions.
5.l Definitions. For purposes of this provision, the following terms shall
have the following meanings:
5.1.1 "Base Amount" shall mean the amount of the Executive's annual Base
Compensation at the rate in effect immediately prior to the Change in Control.
5.1.2 "Bonus Amount" shall mean the most recent annual Short Term
Performance Bonus paid or payable to the Executive for the full fiscal year
ended prior to the fiscal year during which a Change in Control occurred.
5.1.3 "Change in Control" as used herein shall mean any of the following
events occurring after May 3, 1999:
(A) When the Company or the Bank acquires actual knowledge that any person
(as such term is used in sections 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934 (the "Exchange Act")), other than an employee benefit plan
established or maintained by the Company or the Bank, is or becomes the
beneficial owner (as defined in Rule 13d-3 of the Exchange Act) directly or
indirectly, or record owner of securities of the Company representing 50% or
more of the combined voting power of the Company's then outstanding securities;
(B) Upon the purchase of more than fifty percent (50%) of the Company's
common stock pursuant to a tender or exchange offer (other than a tender or
exchange offer made by the Company or an employee benefit plan established or
maintained by the Company or the Bank);
(C) Upon the approval by the Company's stockholders of: (i) a merger or
consolidation of the Company with or into another corporation (other than a
merger or consolidation the definitive agreement for which provides that at
least two-thirds (2/3) of the directors of the surviving or resulting
corporation immediately after the transaction are to be Directors who were
serving prior to the execution of such definitive agreement); or (ii) a sale or
disposition of all or substantially all of the Company's assets;
(D) If during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of either the Company
or the Bank (the "Continuing Directors") cease for any reason to constitute at
least a majority thereof;
(E) Upon a sale of (i) common stock of the Bank if after such sale any
person (as defined above), other than the Company or an employee benefit plan
established or maintained by the Company or the Bank, owns a majority of the
Bank's common stock or (ii) all or substantially all of the Bank's assets; or
(F) Any other agreement, happening or device which has substantially the
same effect on control of the Company or the Bank as any of the foregoing.
5.2 Upon the occurrence of a Change in Control of the Bank or the Company,
the Executive may voluntarily terminate her employment under this Agreement
within six (6) months following a Change in Control of the Company or the Bank
by giving Notice of Termination and the Executive shall thereupon be entitled to
receive an amount equal to 2.99 multiplied by the Executive's Base Amount and
Bonus Amount, provided, however, such payment shall be reduced to the extent
necessary to eliminate the imposition of any taxes under code Sections 280G and
4999 to such payment, if the amount of such payment thereby received by the
Executive on an after tax basis would be higher than the amount of such payment
the Executive would otherwise receive on an after tax basis had no reduction
occurred. In the event that the Executive is entitled to any payments under this
Paragraph 5.2 and has already received any payments under the provisions of
Paragraph 4.5, such payments already received shall be deducted from any payment
due under this Paragraph 5.2. Upon an election to receive payments under this
Section 5.2, the Executive shall not be entitled to receive any payments under
Paragraph 4.
5.3 Any payments made to the Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with 12 U.S.C.
1828(k) and any regulations promulgated thereunder.
6. Trade Secrets; Covenant Not to Compete.
6.1 The Executive shall not, at any time, either during the Initial Term or
any Renewal Term or after the Termination Date, use or disclose any Trade
Secrets of the Bank, except in fulfillment of her duties as the Executive during
her employment, for so long as the pertinent information or data remain Trade
Secrets, whether or not the Trade Secrets are in written or tangible form. As
used herein, "Trade Secrets" shall mean any information, pattern, a compilation,
a program, a device, a method, a technique, a drawing, a process, financial
data, financial plans, product plans, information on customers, or a list of
actual or potential customers or suppliers, which: (i) derives economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
6.2 Upon termination of Executive's employment hereunder, by the Bank, the
Company or the Executive, for any reason, other than nonrenewal of this
Agreement, for a period of six (6) months after the Termination Date (the
"Non-Compete Period"), Executive agrees that she will not engage in banking
activities similar to those engaged in by the Bank and the Company, within an
area (the "Territory") comprised of Fairfax, Arlington, Prince ▇▇▇▇▇▇▇ and
Loudoun Counties, including the incorporated cities situated therein, and the
City of Alexandria in the Commonwealth of Virginia. In the event that the Bank
or the Company opens or acquires a location for its operations in any other
jurisdiction, the county or the District of Columbia in which such location is
opened or acquired shall be added to the Territory. During the Non-Compete
Period, Executive further agrees that she will not directly or indirectly
solicit or provide banking services to customers of the Bank or the Company.
7. Successors; Binding Agreement.
7.1 This Agreement shall be binding upon and shall inure to the benefit of
the Bank, their successors and assigns and the Company and the Bank shall
require any successors and assigns to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Bank would be
required to perform if no such succession or assignment had taken place.
7.2 Neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by the Executive, her beneficiaries or legal
representatives, except by will or by the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal personal representative.
.
8. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to Company:
Heritage Bancorp, Inc.
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Bank:
The Heritage Bank
Attention: Board of Directors
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Executive:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Any party to this Agreement may change such address for notices by sending to
the parties to this Agreement written notice of a new address for such purpose.
All notices and communications shall be deemed to have been received on the date
of delivery thereof.
9. Settlement of Claims. The Company's and the Bank's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the company or the Bank may have against the Executive or others. The Company or
the Bank may, however, withhold from any benefits payable under this Agreement
all federal, state, city, or other taxes as shall be required pursuant to any
law or governmental regulation or ruling.
10. Modification and Waiver.
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing and signed
by the Executive, the Bank and the Company. No waiver by any party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
11. Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Virginia without giving effect
to the conflict of laws principles thereof.
12. Arbitration.
Any controversy or claim arising out of or relating to this Agreement or
the breach thereof, shall be settled by arbitration administered by the American
Arbitration Association under its National Rules for the Resolution of
Employment Disputes, and judgment upon the award rendered by the arbitrator(s)
may be entered by any court having jurisdiction thereof.
WITNESS OUR HANDS AND SEALS as of the day above first written.
ATTEST:
BANK:
THE HERITAGE BANK
By:
Secretary
*SEAL*
ATTEST:
COMPANY:
HERITAGE BANCORP, INC.
By:
Secretary
*SEAL*
EXECUTIVE:
[SEAL]
▇▇▇▇▇▇ ▇. ▇▇▇▇▇