Exhibit 10.11
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT
is made as of the 2nd day of July 2007, among LEESPORT
FINANCIAL CORP. (“Company”), a Pennsylvania business
corporation having a place of business at 1240 Broadcasting
Road, Wyomissing, Pennsylvania 19610, ESSICK & BARR, LLC
(“E&B”), a Pennsylvania limited liability company
having a place of business at 108 South Fifth Street, Reading,
Pennsylvania 19612, and MICHAEL HERR (“Employee”), an
individual residing at 3304 Pequot Drive, Sinking Spring,
Pennsylvania 19608.
WITNESSETH
:
WHEREAS, E&B is a licensed
insurance broker and a wholly-owned subsidiary of
Company;
WHEREAS, E&B has employed
Employee in the capacity of Senior Vice President of the Commercial
Property & Casualty Division of E&B pursuant to an
employment agreement, dated September 1, 2004 (the
“Original Agreement”);
WHEREAS, Company and E&B are
undertaking a reorganization of Leesport’s insurance
operations, commencing July 1, 2007, which reorganization will
result in, among other things, a consolidation of the operations
and names of E&B’s existing insurance divisions or
groups; and
WHEREAS, in connection with the
reorganization of the insurance operations, Company, E&B, and
Employee mutually desire to amend and restate the Original
Agreement on the terms and conditions set forth herein.
AGREEMENT :
NOW, THEREFORE, the parties hereto,
intending to be legally bound, agree as follows:
1. Employment .
E&B hereby employs Employee and Employee hereby accepts
employment with E&B, on the terms and conditions set forth in
this Agreement. Leesport agrees that, throughout the
Employment Period, Employee, if he so desires, shall be entitled to
serve on the Board of Directors of E&B.
2. Duties of Employee
. Employee shall perform and discharge well and faithfully
such duties as an officer of E&B as may be assigned to Employee
from time to time by the Board of Directors of E&B.
Employee shall be employed as a Senior Vice President of E&B,
and effective July 2, 2007, the Chief Insurance Operating Officer
of E&B, and shall hold such other titles as may be given to him
from time to time by the Board of Directors of E&B.
Employee shall devote his full time, attention and energies to the
business of E&B during the Employment Period (as defined in
Section 3 of this Agreement); provided, however, that this Section
2 shall not be construed as preventing Employee from (a) investing
Employee’s personal
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assets in enterprises that
do not compete with Company or E&B (or any of their
affiliates); or (b) being involved in any other activity with
the prior approval of the President or Board of Directors of
E&B.
3. Term
of Agreement .
(a)
This Agreement
shall be for a period (the “Employment Period”)
commencing on July 2, 2007 and ending on December 31,
2010; provided, however, that the Employment Period shall be
automatically extended on January 1, 2011 and on
January 1 of each subsequent year (each an “Annual
Renewal Date”) for a period ending three (3) years from
each Annual Renewal Date unless Company, E&B or Employee shall
give written notice of nonrenewal to the other party at least
ninety (90) days prior to an Annual Renewal Date, in which
event this Agreement shall terminate at the end of the then
existing Employment Period.
(b)
Notwithstanding
the provisions of Section 3(a) of this Agreement, this
Agreement shall terminate automatically for Cause (as defined
herein) upon written notice from the Board of Directors of E&B
to Employee. As used in this Agreement, “Cause”
shall mean any of the following:
(i)
Employee’s
conviction of or plea of guilty or nolo contendere to a
felony, a crime of falsehood or a crime involving moral turpitude,
or the actual incarceration of Employee for a period of at least
thirty (30) days; or
(ii)
Employee’s
failure to follow the good faith lawful instructions of the Board
of Directors of E&B with respect to its operations following
written notice of such instructions; or
(iii)
Employee’s
failure to perform Employee’s duties to E&B (other than a
failure resulting from Employee’s incapacity because of
physical or mental illness, as provided in
subsection (d) of this Section 3), after notice from
E&B or Company and a failure to cure such violation within ten
(10) days of said notice, unless it is apparent under the
circumstances that Employee is unable to cure such violation, which
failure results in injury to Company or E&B, monetarily or
otherwise; or
(iv)
Employee’s
intentional violation of the provisions of this Agreement;
or
(v)
dishonesty or
gross negligence of the Employee in the performance of his duties;
or
(vi)
conduct on the
part of the Employee which brings public discredit to Company or
E&B; or
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(vii)
Employee’s
breach of fiduciary duty involving personal profit; or
(viii)
Employee’s
loss or non-renewal of an insurance license; or
(ix)
Employee’s
removal or prohibition from being an institutional-affiliated party
by a final order of an appropriate federal banking agency pursuant
to the Federal Deposit Insurance Act or by the Pennsylvania
Department of Banking Commission pursuant to state law.
If this Agreement is terminated for
Cause, Employee’s rights under this Agreement shall cease as
of the effective date of such termination.
(c)
Notwithstanding
the provisions of Section 3(a) of this Agreement, this
Agreement shall terminate automatically upon Employee’s
voluntary termination of employment (other than in accordance with
Section 5 of this Agreement), retirement at Employee’s
election, or Employee’s death, and Employee’s rights
under this Agreement shall cease as of the date of such voluntary
termination, retirement at Employee’s election, or death;
provided, however, that if Employee dies after Employee delivers a
Notice of Termination (as defined in Section 5(a) of this
Agreement), Employee’s estate shall be absolutely entitled to
receive all of the compensation provided for in, and for the term
set forth in Section 6 of this Agreement and the provisions of
Section 14(b) of this Agreement shall apply.
(d)
Notwithstanding
the provisions of Section 3(a) of this Agreement, this
Agreement shall terminate automatically upon Employee’s
disability and Employee’s rights under this Agreement shall
cease as of the date of such termination; provided, however, that
if Employee becomes disabled after Employee delivers a Notice of
Termination (as defined in Section 5(a) of this
Agreement), Employee shall nevertheless be absolutely entitled to
receive all of the compensation provided for in, and for the term
set forth in, Section 6 of this Agreement. For purposes
of this Agreement, “disability” shall mean
Employee’s incapacitation by accident, sickness or otherwise
which renders Employee mentally or physically incapable of
performing the services required of Employee for the entire period
of six (6) consecutive months.
(e)
Employee agrees
that in the event his employment under this Agreement is
terminated, Employee shall resign as a director of E&B and any
of its affiliates or subsidiaries, if he is then serving as a
director of any of such entities.
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4.
Employment Period Compensation .
(a)
Annual Base
Salary . For services
performed by Employee under this Agreement, E&B shall pay
Employee an annual base salary (“Annual Base Salary”)
in the aggregate during the Employment Period at the rate of Two
Hundred Fifty Thousand Dollars ($250,000) per year, payable at the
same times as salaries are payable to other officer employees of
E&B. E&B may, from time to time, increase Employee’s
Annual Base Compensation payable under this Section 4(a), and
any and all such increases shall be deemed to constitute amendments
to this Section 4(a) to reflect the increased amounts,
effective as of the date established for such increases by the
E&B Board or any committee of the E&B Board in the
resolutions authorizing such increase.
(b)
Semi-Annual
Bonus . For any consecutive
six-month period, commencing with the six-month period beginning on
July 1, 2007 and ending on December 31, 2007, in which
Employee is serving as Chief Insurance Operating Officer of E&B
and in which the actual EBITA of E&B (as defined and determined
in accordance with E&B’s customary practices) is at least
90% of the pre-determined budgeted amount for the applicable
six-month period, Employee shall be entitled to receive a cash
bonus expressed as a percentage of actual EBITA for such six-month
period. For total actual EBITA equal to 90% or more, but less
than 99%, of the pre-determined amount budgeted for the applicable
six-month period, Employee shall receive a cash bonus of 1% of
actual EBITA for such six-month period, and for total actual EBITA
equal to 100% or more of the pre-determined amount budgeted for the
applicable six-month period, Employee shall receive a cash bonus
equal to the sum of (i) 1% of the actual amount of EBITA
budgeted for such six-month period plus (ii) 10% of the amount
by which actual EBITA for such six-month period exceeds the amount
budgeted for such six-month period. Any bonus payable under
this Section 4(b) shall be paid within 60 days of the end
of the applicable six-month period. An example of the manner
of calculation of the quarterly bonus in accordance with this
Section 4(b) is attached as Exhibit A
hereto.
(c)
Corporate
Bonus and Referral Programs . In addition to the
other compensation and benefits payable in accordance with this
Section 4, Employee shall be eligible to participate in
accordance with their terms and any commercial referral plan in
effect from time to time for employees of Leesport and its
affiliates and in any corporate bonus plan or program maintained
from time to time for employees of Leesport and its
affiliates.
(d)
Vacations
. During
the term of this Agreement, Employee shall be entitled to four
(4) weeks paid annual vacation in addition to personal and
short-
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term absence in
accordance with the policies established for E&B
employees. Employee shall not, however, be entitled to
receive any additional compensation from E&B for failure to
take a vacation, nor shall Employee be able to accumulate unused
vacation time from one year to the next, except to the extent
authorized in writing by the Board of Directors of
E&B.
(e)
Automobile
. During
the term of this Agreement, Employee shall be entitled to receive a
monthly car allowance of Five Hundred Dollars ($500.00) towards all
expenses, including lease and insurance payments, fuel and other
operating expenses, of an automobile for use in connection with
Employee’s duties under this Agreement.
(f)
Employee
Benefit Plans . During the term of
this Agreement, Employee shall be entitled to participate in and
receive the benefits of any employee benefit plan available from
time to time to employees of E&B; provided, however, that
nothing contained herein shall be construed as prohibiting Company,
E&B or any other subsidiary of Company from eliminating or
limiting a plan or benefit provided that such elimination or
limitation is applicable to employees generally. Nothing paid
to Employee under any plan or arrangement presently in effect or
made available in the future shall be deemed to be in lieu of the
salary payable to Employee pursuant to Section 4(a) of
this Agreement.
(g)
Stock
Options . Employee shall be
eligible to participate in Company’s stock option plans and
programs in effect from time to time and will be eligible for
consideration for grants under such plans on the same basis as
other officers of Company and its subsidiaries.
5.
Termination of Employment Following Change in Control
.
(a)
If a Change in
Control (as defined in Section 5(b) of this Agreement)
shall occur and if thereafter at any time during the term of this
Agreement there shall be:
(i)
any involuntary
termination of Employee’s employment (other than for the
reasons set forth in Section 3(b) or 3(d) of this
Agreement);
(ii)
any reduction in
Employee’s responsibilities, including reporting
responsibilities, or authority, including such title,
responsibilities or authority as such title, responsibilities or
authority may be increased from time to time during the term of
this Agreement;
(iii)
the assignment to
Employee of duties inconsistent with Employee’s office on the
date of the Change in Control or as the same may be increased from
time to time after the Change in Control;
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(iv)
any reassignment
of Employee to a location greater than fifty (50) miles from the
location of Employee’s office on the date of the Change in
Control;
(v)
any reduction in
Employee’s Annual Base Salary in effect on the date of the
Change in Control or as the same may be increased from time to time
after the Change in Control;
(vi)
any failure to
continue Employee’s participation in any of E&B’s
commission compensation or bonus plans in which Employee
participated at the time of the Change in Control or any change or
amendment to any provisions of
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