Exhibit 10.(N)
THE BRYN MAWR TRUST
COMPANY
EXECUTIVE
CHANGE-OF-CONTROL
AMENDED &
RESTATED
SEVERANCE
AGREEMENT
This Agreement made as of
May 21, 2004, amends and restates the Agreement dated
February 20, 1998, between The Bryn Mawr Trust Company, a
Pennsylvania financial institution, subject to the provisions of
the Pennsylvania Banking Code of 1965, as amended (the
“Company”), and Joseph G. Keefer (the
“Employee”).
WHEREAS, the Employee is presently
employed by the Company as its Executive Vice President and Chief
Lending Officer – Credit Division;
WHEREAS, the Company considers it
essential to foster the employment of well qualified key management
personnel, and, in this regard, the board of directors of the
Company recognizes that, as is the case with many financial
institutions, the possibility of a change of control of the
Company’s publicly held parent company, Bryn Mawr Bank
Corporation, (“BMBC”) may exist and that such
possibility, and the uncertainty and questions which it may raise
among the Company’s management, may result in the departure
or distraction of key management personnel to the detriment of the
Company and ultimately to the detriment of BMBC and its
shareholders;
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WHEREAS, the Boards of directors of
the Company and BMBC have determined that appropriate steps should
be taken to reinforce and encourage the continued attention and
dedication of key members of the Company’s management to
their assigned duties, without distraction in the face of
potentially disturbing circumstances arising from the possibility
of a change of control of the BMBC, although no such change is now
contemplated; and
WHEREAS, in order to induce the
Employee, a key member of the Company’s management, to remain
in the employ of the Company, the Company agrees that the Employee
shall receive the compensation and benefits set forth in this
Agreement in the event his/her employment with the Company is
terminated subsequent to a “Change of Control” (as
defined in Section 1 hereof) of BMBC, as a cushion against the
financial and career impact on the Employee of any such Change of
Control;
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements hereinafter
set forth and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Definitions . For all
purposes of this Agreement, the following terms shall have the
meanings specified in this Section, unless the context clearly
otherwise requires:
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(a) “Affiliate” and
“Associate” shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and Regulations
issued under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”).
(b) “AIP” shall mean any
Annual Incentive Plan of the Company, as in effect immediately
prior to a change of Control, or predecessor or prior plan,
including BMBC’s Thrift and Savings Plan and the
Company’s annual bonus plan.
(c) “Base Salary” shall
mean the total cash remuneration earned by the Employee on an
annualized basis in all capacities with the Company and its
Subsidiaries, including, without limitation, any amounts the
payment of which has been deferred by the Employee, excluding only
payments earned by or allocated to the Employee under the
AIP.
(d) A Person shall be deemed the
“Beneficial Owner” of any securities:
(i) that such Person or any of such
Person’s Affiliates or Associates, directly or indirectly,
has the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in writing)
or upon
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the exercise of conversion rights,
exchange rights, rights, warrants or options, or otherwise;
provided , however , that a Person shall not be
deemed the “Beneficial Owner” of securities tendered
pursuant to a tender or exchange offer made by such Person or any
of such Person’s Affiliates or Associates until such tendered
securities are accepted for payment, purchase or
exchange;
(ii) that such Person or any of such
Person’s Affiliates or Associates, directly or indirectly,
has the right to vote or dispose of or has “beneficial
ownership” of (as determined pursuant to Rule 13d-3 of the
General Rules and Regulations issued under the Exchange Act),
including without limitation pursuant to any agreement, arrangement
or understanding, whether or not in writing; provided ,
however , that a Person shall not be deemed the
“Beneficial Owner” of any security under this
subsection (ii) as a result of an oral or written agreement,
arrangement or understanding to vote such security if such
agreement, arrangement or understanding (A) arises solely from
a revocable proxy given in response to a public proxy or consent
solicitation made pursuant
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to, and in accordance with, the
applicable provisions of the General Rules and Regulations issued
under the Exchange Act, and (B) is not then reportable by such
Person on Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) that are beneficially owned,
directly or indirectly, by any other Person (or any Affiliate or
Associate thereof) with which such Person (or any of such
Person’s Affiliates or Associates) has any agreement,
arrangement or understanding (whether or not in writing) for the
purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in the proviso to subsection
(ii) above) or disposing of any voting securities of BMBC;
provided , however , that nothing in this
Section 1(d) shall cause a Person engaged in business as an
underwriter of securities to be the “Beneficial Owner”
of any securities acquired through such Person’s
participation in good faith in a firm commitment underwriting until
the expiration of forty (40) days after the date of such
acquisition.
(e) “Board” shall mean
the board of directors of the Company or BMBC as the context of
this Agreement indicates.
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(f) “Change of Control”
shall be deemed to have taken place if (i) any Person (except
BMBC, any Subsidiary of BMBC, any employee benefit plan of BMBC or
the Company, any Person or entity organized, appointed or
established by BMBC or any Subsidiary of BMBC for or pursuant to
the terms of any such employee benefit plan) together with all
Affiliates and Associates of such Person, shall become the
Beneficial Owner in the aggregate of 25% or more of the common
stock of BMBC then outstanding, or (ii) during any twenty-four
month period, individuals who at the beginning of such period
constituted the Board of BMBC or the Company cease, for any reason,
to constitute a majority thereof, unless the election, or the
nomination for election by BMBC’s or the Company’s
shareholders, as the case may be, of each director who was not a
director at the beginning of such period was approved by a vote of
at least two-thirds of the directors in office at the time of such
election or nomination, who were directors at the beginning of such
period.
(g) “Common Stock” shall
mean the outstanding common stock of BMBC.
(h) “Pension Plan” shall
mean the BMBC non-contributory pension plan and the amended pension
plan which covers eligible employees of the Company.
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(i) “Person” shall mean
any individual, firm, corporation, partnership or other
entity.
(j) “Stock Plan” shall
mean (i) BMBC’s 1986 Stock Option and Stock Appreciation
Rights Plan, as amended and restated; (ii) BMBC’s 1998
Stock Option Plan; and (iii) any other stock option plan,
stock option and stock appreciation rights plan, stock bonus plan,
stock grant plan, or similar benefit plan established by BMBC and
which exists for the benefit of the Employee at the time of a
Change in Control.
(k) “Subsidiary” shall
have the meaning ascribed to such term in Rule 12b-2 of the General
Rules and Regulations issued under the Exchange Act.
(l) “Termination Date”
shall mean the date of receipt of the Notice of Termination
described in Section 2 hereof or any later date specified
therein, as the case may be.
(m) “Termination of
Employment” shall mean the termination of the
Employee’s actual employment relationship with the
Company.
(n) “Termination upon a Change
of Control” shall mean a Termination of Employment upon or
within two (2) years after a Change of Control
either:
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(i) initiated by the Company for any
reason other than (x) the Employee’s continuous illness,
injury or incapacity for a period of six consecutive months or
(y) for “cause,” which shall mean misappropriation
of funds, habitual insobriety, substance abuse, conviction of a
crime involving moral turpitude, or gross negligence in the
performance of his/her duties, which gross negligence has had a
material adverse effect on the business, operations, assets,
properties or financial condition of the Company and its
Subsidiaries or BMBC and its Subsidiaries taken as a whole;
or
(ii) initiated by the Employee
following one or more of the following occurrences:
(A) a significant reduction by the
Company or BMBC (if the Employee is an officer of BMBC) of the
authority, duties or responsibilities of the Employee immediately
prior to the Change of Control;
(B) any removal of the Employee from
his/her officer position with BMBC, the Company and its
Subsidiaries held by him/her immediately prior to the Change of
Control, except in connection with promotions to higher
office;
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(C) a reduction by the Company in
the Employee’s Base Salary as in effect immediately prior to
the Change of Control;
(D) revocation or any modification
of the AIP or Stock Plan, or any action taken pursuant to the terms
of either plan, which materially (x) reduces the opportunity
to receive compensation under any or both of such plans of
equivalent amounts received by the Employee during the three
(3) fiscal years immediately preceding the Change of Control,
subject to the right of the Boards of Directors of BMBC or the
Company, as appropriate, to establish in a manner consistent with
past practice, prior to the Change of Control, reasonable goals
under the AIP or Stock Plan, (y) reduces the compensation
payable to the Employee under either or both of such plans but
which does not effect comparable reductions in the compensation
payable to the other participants in such plans, or
(z) increases
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the compensation payable to other
participants in either or both of such plans but which does not
effect corresponding increases in the amount of compensation
payable to the Employee;
(E) termination or modification of
BMBC’s Pension Plan or Supplemental Employee Retirement Plan,
in each case as such plans are in effect immediately prior to the
Change of Control, which materially reduces (x) the retirement
benefits provided by such plans, or (y) the funding thereof
provided by the Pension Plan or by any trust established by BMBC to
fund benefits provided by the Supplemental Employee Retirement
Plan;
(F) a transfer of the Employee,
without his/her express written consent, to a location which is
outside the Greater Philadelphia area (or the general area in which
his/her principal place of business immediately preceding the
Change of Control may be located at such time, if other than Bryn
Mawr, Pennsylvania), or which is otherwise an unreasonable
commuting distance from the Employee’s principal residence at
the date of the Change of Control;
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(G) the Employee being required to
undertake business travel to an extent substantially greater than
the Employee’s business travel obligations immediately prior
to the Change of Control; or
(H) any failure of the Company to
comply with and satisfy Section 13 of this
Agreement.
2. Notice of Termination .
Any Termination upon a Change of Control shall be communicated by a
Notice of Termination to the other party hereto given in accordance
with Section 14 hereof. For purposes of this Agreement, a
“Notice of Termination” means a written notice which
(i) indicates the specific termination provision in this
Agreement relied upon, (ii) briefly summarizes the facts and
circumstances deemed to provide a basis for termination of the
Employee’s employment under the provision so indicated, and
(iii) if the termination date is other than the date of
receipt of such notice, specifies the termination date (which date
shall not be more than 15 days after the giving of such
notice).
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3. Severance Compensation upon
Termination . Subject to the provisions of Section 10
hereof, in the event of the Employee’s Termination upon a
Change of Control, the Company shall pay to the Employee, within
fifteen (15) days after the Termination Date (or as soon as
possible thereafter in the event that the procedures set forth in
paragraph (b) of Section 11 hereof cannot be completed
within fifteen (15) days) an amount in cash equal to three
(3) times the sum of the Employee’s Base Salary in
effect either immediately prior to the Termination of Employment or
immediately prior to the Change of Control, whichever is
higher.
4. Other Payments . Subject
to the provisions of Section 10 hereof, in the event of the
Employee’s Termination upon a Change of Control, the Company
shall:
(a) pay to the Employee within
fifteen (15) days after the Termination date:
(i) unless the Employee has
exercised such options, an amount equal to the excess, if any, of
the aggregate fair market value of the shares of BMBC’s
Common Stock subject to all stock options outstanding and
unexercised as of the Termination Date, whether vested or unvested,
granted to the Employee under the Stock Plan, over the
aggregate
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exercise price of all such stock
options. For purposes of this paragraph, fair market value shall
mean the highest of (x) the closing price of BMBC’s
Common Stock on the last business day the Common Stock was traded
immediately preceding the Termination Date, if such Common Stock is
publicly traded at such date, (y) if such Common Stock is not
publicly traded at the Termination date, the value determined by an
independent appraiser, such appraiser to be selected by the
Employee and to be reasonably satisfactory to the Company (the fees
and expenses of such appraiser to be borne by the Company), or
(z) the highest per share price of BMBC’s Common Stock
paid (in connection with the Change of Control or
