Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT, entered into as of the 1st day of December 1998, by and
between Atlantic Financial Corp., a Virginia corporation, (the "Corporation"),
and D. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Executive").
WITNESSETH:
WHEREAS, the Corporation desires to retain the services of Executive on
the terms and conditions set forth herein and, for purpose of effecting the
same, the Board of Directors of the Corporation has approved this Employment
Agreement and authorized its execution and delivery on the Corporation's behalf
to the Executive; and
WHEREAS, the Executive is presently the duly elected and acting
Executive Vice President of the Corporation and President and Chief Executive
Officer of The Bank of Sussex and Surry, as such, is a key executive officer of
the Corporation whose continued dedication, availability, advice and counsel to
the Corporation is deemed important to the Board of Directors of the
Corporation, the Corporation and its stockholders;
WHEREAS, the services of the Executive, his experience and knowledge of
the affairs of the Corporation, and his reputation and contacts in the industry
are extremely valuable to the Corporation; and
WHEREAS, the Corporation wishes to attract and retain such
well-qualified executives and it is in the best interests of the Corporation and
of the Executive to secure the continued services of the Executive; and
WHEREAS, the Corporation considers the establishment and maintenance of
a sound and vital management to be part of its overall corporate strategy and to
be essential to protecting and enhancing the best interests of the Corporation
and its stockholders;
NOW, THEREFORE, to assure the Corporation of the Executive's continued
dedication, the availability of his advice and counsel to the Board of Directors
of the Corporation, and to induce the Executive to remain and continue in the
employ of the Corporation and for other good and valuable consideration, the
receipt and adequacy whereof each party hereby acknowledges, the Corporation and
the Executive hereby agrees as follows:
1. EMPLOYMENT: The Corporation agrees to, and does hereby, employ
Executive, and Executive agrees to, and does hereby, accept such employment, for
the period beginning as of the date hereof and ending on November 30, 2003,
which period of employment may be extended or terminated only upon the terms and
conditions hereinafter set forth.
2. RENEWAL TERM: This Agreement shall be extended for an additional
year annually following the original term unless either party notifies the other
in writing at least three (3) months prior to the end of the original term, or
the end of any additional one-year term, that the Agreement shall not be
extended beyond its current term.
3. EXECUTIVE DUTIES: The Executive agrees to accept and perform the
managerial duties and responsibilities of Executive Vice President of the
Corporation and agrees
to devote his time and attention on a full-time basis to the discharge of such
duties and responsibilities of an executive nature as may be assigned him by the
Board of Directors of the Corporation or the Chief Executive Officer. As
Executive Vice President, the Executive shall have the duties set forth for such
officer in the Corporation's Bylaws. The Executive also shall serve as a
director and as President and Chief Executive Officer of The Bank of Sussex and
Surry or its successor. The Executive may accept any elective or appointed
positions or offices with any duly recognized associations or organizations
whose activities or purposes are closely related to the banking business or
purposes are closely related to the banking business or service to which would
generate good will for the Corporation and its subsidiaries.
4. COMPENSATION: (a) The Corporation agrees to pay Executive, and
Executive agrees to accept, as compensation for all services rendered by him to
the Corporation during the period of his employment under this Agreement, base
salary at the annual rate of One Hundred Fifteen Thousand Dollars ($115,000.00),
which shall be payable in monthly, semi-monthly or bi-weekly installments in
conformity with Corporation's policy relating to salaried employees. On or
before the first anniversary of this Agreement and for each year thereafter, the
Corporation agrees to review the Executive's base salary and to consider
implementing increases to such base salary as may be warranted based upon the
performance of the Executive and the performance of the Corporation and
comparable data related to similarly sized institutions as may be available;
however, such base salary shall not be reduced below the previous year's base
salary without the specific written agreement by the Executive.
(b) Executive shall receive only such bonuses as the Board of
Directors, in its discretion, decides to pay to Executive.
(c) The Executive shall be entitled to four weeks vacation which
shall be without loss of pay. Attendance at meetings or conventions of banking
associations or organizations shall not be charged against the Executive's
annual vacation entitlement.
(d) The Executive shall be paid all normal directors' fees for
service on the Board of Directors of The Bank of Sussex and Surry or its
successor.
(e) On or before August 1, 2001, the Corporation shall grant the
Executive an option to purchase under the Corporation's 1998 Incentive Plan
common stock of the Corporation with a fair market value at the time of grant
equal to One Hundred Sixty-Seven Percent (167%) of the Executive's annual salary
at the date of grant at a per share exercise price which does not exceed 100%
(or any higher amount required under IRC Section 422) of the fair market value
per share of such common stock at the date of grant. Such option shall be an
incentive stock option and shall vest as rapidly as is consistent with incentive
option treatment. In addition, the Executive shall be considered for stock
option grants whenever the Corporation's Chief Executive Officer is considered
and the stock option to be granted to the Executive pursuant to this Section
4(e) shall be disregarded when the Executive is so considered for additional
stock option grants.
(f) The Corporation will pay the Executive's country club initiation
fee and dues on such basis as may be determined by the Board of Directors of the
Corporation from time to time.
(g) During the term of this Agreement, the Corporation shall provide
the Executive with an appropriate automobile as determined by the Board of
Directors of the Corporation.
(h) If the Executive is required to move his personal residence to
any place other than the Wakefield, Virginia area, the Corporation will pay all
reasonable expenses incurred by Executive in connection with such move,
including the reimbursement of any reasonable and
customary real estate commission incurred in connection with the sale of his
present personal residence.
5. PARTICIPATION IN BENEFIT PLANS, REIMBURSEMENT OF BUSINESS
EXPENSES AND MOVING EXPENSES: (a) During the term of employment under this
Agreement, Executive shall be entitled to participate in any pension, group
insurance, hospitalization, deferred compensation or other benefit, bonus or
incentive plans of the Corporation presently in effect (including, without
limitation, the Corporation's stock option plans) or hereafter adopted by the
Corporation and generally available to any employees of senior executive status,
and, additionally, Executive shall be entitled to have the use of Corporation's
facilities and executive benefits as are customarily made available by the
Corporation to its executive officers.
(b) The Corporation shall promptly reimburse the Executive, upon
presentation of adequate substantiation, including receipts, for the reasonable
travel, entertainment, lodging and other business expenses incurred by the
Executive, including, without limitation, those expenses incurred by the
Executive and his spouse in attending trade and professional association
conventions, meetings and other related functions attended by other bank
executives and their spouses.
6. ILLNESS: In the event Executive is unable to perform his duties
under this Agreement on a full-time basis for the greater of ninety (90)
consecutive calendar days or the longest waiting period under any long term
disability insurance contract or program provided to him as an employee as a
result of incapacity due to mental or physical illness or disability as
determined by a physician selected by the Corporation, the Corporation may
terminate this Agreement without further or additional compensation payment
being due the Executive from the Corporation pursuant to this Agreement, except
benefits accrued through the date of such termination under employee benefit
plans of the Corporation. These benefits shall include long-term disability and
other insurance or other benefits then regularly provided by the Corporation to
disabled employees, as well as any other insurance benefits so provided.
7. DEATH: In the event of Executive's death during the term of this
Agreement, his estate, legal representatives or named beneficiaries (as directed
by Executive in writing) shall be paid Executive's salary from the Corporation
at the rate in effect at the time of Executive's death for a period of three (3)
months from the date of Executive's death.
8. TERMINATION WITHOUT CAUSE/RESIGNATION FOR GOOD REASON: (a)
Notwithstanding the provisions of Section 1 hereof, the Board of Directors of
the Corporation may, without Cause (as hereafter defined), terminate the
Executive's employment under this Agreement at any time in any lawful manner by
giving not less than thirty (30) days written notice to the Executive. The
Executive may resign for Good Reason (as hereafter defined) at any time by
giving not less than thirty (30) days written notice to the Corporation. If the
Corporation terminates the Executive's employment without Cause or the Executive
resigns for Good Reason before or after a Change of Control (as hereafter
defined), then in either event:
(i) The Executive shall be paid for the remainder of the
then current term of this Agreement or for a period of one year from the date of
termination, whichever is greater, at such times as payment was theretofore
made, the salary required under Section 4(a) that the Executive would have been
entitled to receive during the remainder of the then current term of this
Agreement had such termination not occurred (and the Corporation shall continue
such payments to Executive's estate if Executive dies before all such payments
have been made); and
(ii) The Corporation shall maintain in full force and effect
for the continued benefit of the Executive for the remainder of the then current
term of this Agreement, all employee benefit plans and programs or arrangements
in which the Executive was entitled to participate immediately prior to such
termination, provided that continued participation is possible under the general
terms and provisions of such plans and programs. In the event that Executive's
participation in any such plan or program is barred, the Corporation shall
arrange to provide the Executive with benefits substantially similar to those
which the Executive was entitled to receive under such plans and program.
(b) Notwithstanding the foregoing, all such payments and benefits
under Section 8(a) otherwise continuing for periods after the Executive's
termination of employment shall cease to be paid, and the Corporation shall have
no further obligation due with respect thereto, in the event the Executive
engages in "Competition" or makes any "Unauthorized Disclosure of Confidential
Information". For purposes hereof:
(i) "Competition" means the Executive's engaging during the
one (1) year period following termination of employment, without the written
consent of the Board of Directors of the Corporation or a person authorized
thereby, in an activity as an officer, a director, an employee, a partner, a
more than one percent shareholder or other owner, an agent, a consultant, or any
other individual or representative capacity (unless the Executive's duties,
responsibilities and activities, including supervisory activities, for or on
behalf of such activity, are not related in any way to such competitive
activity) if it involves:
(A) engaging in, or entering into services or
providing advice pertaining to, any banking, lending or other financial activity
that the Corporation or any of its affiliates actively engages in within five
(5) miles of any branch of the Corporation or any of its subsidiaries at the
time of Executive's termination of employment, or
(B) soliciting or contacting, either directly or
indirectly, any of the customers or clients of the Corporation or any of its
affiliates for the purpose of competing with the products or services provided
by the Corporation or any of its affiliates, or
(C) employing or soliciting for employment any
employees of the Corporation or any of its affiliates.
(ii) "Unauthorized Disclosure of Confidential Information"
means the disclosure of information in violation of Section 19 of this
Agreement.
(c) For purposes of this Agreement, "Good Reason" shall mean:
(i) Prior to a Change of Control (as hereafter defined) the
assignment of duties to the Executive by the Corporation which (A) are
materially different from the Executive's duties on the date hereof, or (B)
result in the Executive having significantly less authority and/or
responsibility than he has on the date hereof, without his express written
consent;
(ii) After a Change of Control (as hereafter defined) the
assignment of a title or duties that are not commensurate with Executive's
seniority and experience;
(iii) A reduction by the Corporation of the Executive's base
salary, as the same may have been increased from time to time;
(iv) The failure of the Corporation to provide the Executive
with substantially the same fringe benefits (including paid vacations) that were
provided to him immediately prior to the date hereof;
(v) The relocation of the Executive to any other primary
place of employment which requires him to move his residence, without the
Executive's express written consent to such relocation;
(vi) The failure of the Corporation to obtain the assumption
of and agreement to perform this Agreement by any successor as contemplated in
Section 11(b) hereof;
(vii) The merger of The Bank of Franklin and The Bank of
Sussex and Surry or the merger of all the Corporation's bank subsidiaries into a
single bank, unless, in each case, the Executive is made the Chief Executive
Officer of the surviving bank.; or
(viii) A material breach of this Agreement by the Corporation.
(d) Resignation by the Executive for Good Reason shall be
communicated by a written Notice of Resignation to the Corporation. A "Notice of
Resignation" shall mean a notice which shall indicate the specific provision(s)
in this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for a resignation for Good Reason.
(e) If within thirty (30) days after any Notice of Resignation is
given the Corporation notifies the Executive that a dispute exists concerning
the resignation for Good Reason and that it is requesting arbitration pursuant
to Section 18, the Corporation shall continue to pay the Executive his full
salary and benefits as described in Sections 4(a) and 5(a), as and when due and
payable, at least until such time as a final decision is reached by the panel of
arbitrators. If Good Reason for termination by the Executive is ultimately
determined not to exist, then (y) all sums paid by the Corporation to the
Executive, including but not limited to the cost to the Corporation of providing
the Executive such fringe benefits, from the date of such resignation to the
date of the resolution of such dispute, less (z) any sums otherwise owed by the
Corporation the Executive shall be promptly repaid by the Executive to the
Corporation with interest at the rate charged from time to time by the
Corporation to its most substantial customers for unsecured extensions of
credit.
A failure by the Corporation to notify the Executive that a dispute
exists concerning the resignation for Good Reason within thirty (30) days after
any Notice of Resignation is given shall constitute a final waiver by the
Corporation of its right to contest either that such resignation was for Good
Reason or its obligations to the Executive under Section 8(a) hereof.
9. RESIGNATION - TERMINATION FOR CAUSE: (a) The Corporation's Board
of Directors may terminate the Executive's employment for cause at any time.
Cause shall be defined as 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 that have no
material detrimental effect on the Corporation) or final cease-and-desist order,
or a material breach of any provision of this Employment Agreement.
Notwithstanding the foregoing, the Corporation shall notify and counsel
the Executive as to the nature of any instance of cause described above within
30 days of the Corporation's discovery of such neglect or misconduct and shall
provide a reasonable probationary and cure
period from the date of such notice and counseling, but this provision shall
only apply to the first occurrence of any such circumstances and the Corporation
in good faith may immediately terminate the Executive for such continued or
additional instance of cause following the initial notice and counseling.
(b) Termination of the Executive's employment by the Corporation for
Cause pursuant to Section 9(a) shall be communicated by written Notice of
Termination to the Executive. A "Notice of Termination" shall mean a notice
which shall indicate the specific termination provision(s) in this Agreement
relied upon and shall set forth with particularity the facts and circumstances
claimed to provide a basis for termination of employment for Cause under the
provision so indicated.
If within thirty (30) days after any Notice of Termination is given the
Executive notifies the Corporation that a dispute exists concerning the
termination for Cause and that he is requesting arbitration pursuant to Section
18, the Corporation shall continue to pay the Executive his full salary and
benefits as described in Sections 4 and 5, as and when due and payable, at least
until such time as a final decision is reached by the panel of arbitrators. If a
termination for Cause by the Corporation is challenged by the Executive and the
termination is ultimately determined to be justified, then all sums paid by the
Corporation to the Executive pursuant to this Section 9(b), plus the cost to the
Corporation of providing the Executive such fringe benefits from the date of
such termination to the date of the resolution of such dispute, shall be
promptly repaid by the Executive to the Corporation with interest at the rate
charged from time to time by the Corporation, to its most substantial customers
for unsecured lines of credit. Should it ultimately be determined that a
termination by the Corporation pursuant Section 9(a) was not justified, then the
Executive shall be entitled to retain all sums paid to him pending the
resolution of such dispute and he shall be entitled to receive, in addition, the
payments and other benefits provided for in Section 8(a).
A failure by the Executive to notify the Corporation that a dispute
exists concerning the termination for Cause within thirty (30) days after the
Notice of Termination is given shall constitute a final waiver by the Executive
of his right to contest that such termination was for Cause.
(c) In the event that Executive resigns from or otherwise
voluntarily terminates his employment by the Corporation, or his employment by
the Corporation's wholly owned subsidiary, Bank of Sussex and Surry (or its
successor), at any time (except a termination for Good Reason pursuant to
Section 8 hereof), or if the Corporation rightfully terminates the Executive's
employment for Cause, this Agreement shall terminate upon the date of such
resignation or termination of employment for Cause, and (subject to Section
9(b)) the Corporation thereafter shall have no obligation to make any further
payments under this Agreement, provided that the Executive shall be entitled to
receive any benefits, insured or otherwise, that he would otherwise be eligible
to receive under any benefit plans of the Corporation or any affiliate of the
Corporation.
10. CHANGE OF CONTROL: (a) At any time within one hundred eighty
(180) days after a Change of Control, the Executive may resign without Good
Reason and on or before the Executive's last day of employment with the
Corporation (in addition to all other payments to which the Executive is
entitled under this Agreement) the Corporation shall pay to the Executive a cash
amount (subject to any applicable payroll or other taxes required to be
withheld) equal to $200,000, provided that, at the option of the Executive, the
cash amount required to be paid hereby shall be paid by the Corporation in equal
monthly installments over the twelve (12) months succeeding the date of
termination, payable on the first day of each such month; provided, however, if
Executive dies before all payments to which he is entitled under this Section
10(a) have
been made, then such payments he did not receive shall be made to his estate. If
the Executive resigns for Good Reason at any time after a Change of Control,
Section 8(a) shall control.
For purposes of this Agreement, a Change of Control occurs if, after
the date of this Agreement, (i) any person, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934 (but excluding any group
of which the Executive is a member), becomes the owner or beneficial owner of
Corporation securities having 20% or more of the combined voting power of the
then outstanding Corporation securities that may be cast for the election of the
Corporation's directors; (ii) as the direct or indirect result of, or in
connection with, a tender or exchange offer, a merger or other business
combination, a sale of assets, a contested election, or any combination of these
events, the persons who were directors of the Corporation before the first of
such events cease to constitute a majority of the Corporation's Board, or any
successor's board, within two years of the last of such transactions; or (iii)
the shareholders of the Corporation approve (x) a merger, consolidation or other
business combination of the Corporation with any other "person" or "group" (as
defined in or pursuant to Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934) or affiliate thereof, other than a merger or consolidation that
would result in the outstanding common stock of the Corporation immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into common stock of the surviving entity or a parent or
affiliate thereof) more than fifty percent (50%) of the outstanding common stock
of the Corporation or such surviving entity or a parent or affiliate thereof
outstanding immediately after such merger, consolidation or other business
combination, or (y) a plan of complete liquidation of the Corporation or an
agreement for the sale or disposition by the Corporation of all or substantially
all of the Corporation's assets, or (iv) any other event or circumstance which
is not covered by the foregoing subsections but which the Board of Directors of
the Corporation determines to affect control of the Corporation and with respect
to which the Board of Directors adopts a resolution that the event or
circumstance constitutes a Change of Control for purposes of this Agreement. The
date of a Change of Control is the date on which an event described in items (i)
through (iv) above occurs.
(b) If the Executive resigns pursuant to Section 10(a) or if his
employment terminates pursuant to Section 8(a) after a Change of Control, all
stock options granted to the Executive under any of the Corporation's stock
option plans shall become immediately exercisable with respect to all the shares
covered thereby regardless of whether such options are otherwise exercisable and
Executive shall have thirty (30) days after the date of his resignation to
exercise such stock options
11. CERTAIN OBLIGATIONS - SUCCESSORS: (a) The Corporation's
obligation to pay the Executive the compensation and benefits and to make the
arrangements provided herein shall be absolute and unconditional and shall not
be affected by any circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the Corporation may have
against him or anyone else. All amounts payable by the Corporation hereunder
shall be paid without notice or demand. Except as expressly provided in Sections
8(d) and 9(b), each and every payment made hereunder by the Corporation shall be
final and the Corporation will not seek to recover all or any part of such
payment from the Executive or from whosoever may be entitled thereto, for any
reason whatsoever. The Executive shall not be required to mitigate the amount of
any payment provided for in this Agreement by seeking other employment or
otherwise.
(b) The Corporation will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Corporation, or either
one of them, by agreement in form and substance satisfactory to the Executive,
to expressly assume and agree to perform this Agreement in its entirety. Failure
of the
Corporation to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle the Executive
to the compensation described in Section 8(a). As used in this Agreement,
"Corporation" shall mean Atlantic Financial Corp. and any successor to its
respective business and/or assets as aforesaid which executes and delivers the
agreement provided for in this Section 11(b) or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law.
12. LIMITATION OF BENEFITS: If the independent accountants serving
as auditors for the Corporation on the date of a Change of Control (or the
Internal Revenue Service upon examination of the tax returns of the Corporation
or the Executive) determine that some or all of the payments or benefits
scheduled under this Agreement, as well as any other payments or benefits
contingent on a Change of Control, constitute an "excess parachute payment"
within the meaning of Section 280G of the Internal Revenue Code of 1986, as
amended (the Code) and any regulations thereunder, thereby resulting in a loss
of an income tax deduction by the Corporation or the imposition of an excise tax
on the Executive under Section 4999 of the Code (the "Excise Tax"), then the
payments scheduled under this Agreement shall be reduced to one dollar less than
the maximum amount which may be paid without causing any such payment or benefit
to be nondeductible and subject to the Excise Tax. The Executive may designate
which payments or benefits will be reduced.
13. NOTICES: 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
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Savage, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Corporation: 7171 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Memorial Highway
P.O. Box 1310, U.S. Route 17
Gloucester, Virginia 23061-1310
or at such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
14. MODIFICATION - WAIVERS - APPLICABLE LAW: No provisions of this
Agreement may be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing, signed by the Executive and on behalf of
the Corporation by such officer as may be specifically designated by the Board
of Directors of the Corporation. No waiver by either 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 provision or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this
Agreement. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Virginia.
15. INVALIDITY - ENFORCEABILITY: The invalidity or unenforceability
of any provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect. Any provision in this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
or affecting the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. SUCCESSOR RIGHTS: This Agreement shall inure to the benefit of
and be enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If Executive should die while any amounts would still be payable to
him hereunder, all such amounts, unless otherwise provided herein, shall be paid
in accordance with the terms of this Agreement to his devisee, legatee or other
designee or, if there is no such designee, to his estate.
17. HEADINGS: Descriptive headings contained in this Agreement are
for convenience only and shall not control or affect the meaning or construction
of any provision hereof.
18. ARBITRATION: Any dispute, controversy or claim arising under or
in connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three arbitrators, in Richmond, Virginia in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect. The Corporation shall pay all administrative fees
associated with such arbitration. Judgement may be entered on the arbitrator's
award in any court having jurisdiction. Unless otherwise provided in the rules
of the American Arbitration Association, the arbitrators shall, in their award,
allocate between the parties the costs of arbitration, which shall include
reasonable attorneys' fees and expenses of the parties, as well as the
arbitrator's fees and expenses, in such proportions as the arbitrators deem
just.
19. CONFIDENTIALITY: The Executive acknowledges that the Corporation
may disclose certain confidential information to the Executive during the term
of this Agreement to enable him to perform his duties hereunder. The Executive
hereby covenants and agrees that he will not, without the prior written consent
of the Corporation, during the term of this Agreement or at any time thereafter,
disclose or permit to be disclosed to any third party by any method whatsoever
any of the confidential information of the Corporation. For purposes of this
Agreement, "confidential information" shall include, but not be limited to, any
and all records, notes, memoranda, data, ideas, processes, methods, techniques,
systems, formulas, patents, models, devices, programs, computer software,
writings, research, personnel information, customer information, the
Corporation's financial information, plans, or any other information of whatever
nature in the possession or control of the Corporation which has not been
published or disclosed to the general public, or which gives to the Corporation
an opportunity to obtain an advantage over competitors who do not know of or use
it. The Executive further agrees that if his employment hereunder is terminated
for any reason, he will leave with the Corporation and will not take originals
or copies of any and all records, papers, programs, computer software and
documents and all matter of whatever nature which bears secret or confidential
information of the Corporation.
The foregoing paragraph shall not be applicable if and to the extent
the Executive is required to testify in a judicial or regulatory proceeding
pursuant to an order of a judge or
administrative law judge issued after the Executive and his legal counsel urge
that the aforementioned confidentiality be preserved.
The foregoing covenants will not prohibit the Executive from disclosing
confidential or other information to other employees of the Corporation or any
third parties to the extent that such disclosure is necessary to the performance
of his duties under this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
EXECUTIVE
ATTEST: ____________________ __________________________________
D. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
ATLANTIC FINANCIAL CORP.
ATTEST: ____________________ By: ______________________________
AUTHORIZED OFFICER