ex-1046_30x2022cunningha






T # 475348 v.2# 2871946 v. 1  CHANGE OF CONTROL AGREEMENT  THIS CHANGE OF CONTROL AGREEMENT (this "Agreement"), made as of  May 1st,   2019  is  by  and   among   CUSTOMERS   BANK,   a   Pennsylvania   bank   ("Bank"),    and    Lyle Cunningham  an  individual  ("Executive").  This Agreement  and  all  terms  and  conditions  contained herein shall become operative only upon the event  of   a  Change  of   Control as  def ined in this Agreement.  Background  Bank wishes to secure the future services of Executive by providing Execut ive the severance  payments provided in this Agreement as additional incent ive to induce Execut ive to devote  Executive's time and attention to the interests and affairs of the Bank (the "Agreement").  NOW THEREFORE, in consideration of the mutual promises and agreements set forth herein,  and intending to be legally bound hereby, the parties agree as follows:  1. Employment. Except strictly to such extent (if  any) as may be provided in another agreement between Bank and Executive, Executive shall remain an employee at wil l  of the Bank hereaf ter. This Agreement is not an employment agreement, but shall only be interpreted as governing the payment of severance, which may be due to Executive upon termination of  Executive's employment with Bank under the specif ic circumstances described in this Agreement. No provision of  this Agreement shall be interpreted to derogate from the power of Bank or its Board of Directors to terminate the employment of the Executive, subject nevertheless to the terms of this Agreement. 2. Compensation. The compensation to be paid by Bank to Executive f rom t ime to t ime, including any fringe benefits or other employee benefits, shall not be governed by this Agreement. This Agreement shall not be deemed to affect the terms of any stock options,  employee benefits or other agreements between the Bank and Executive. 3. Severance Payments upon Termination of Employment After a "Change in Control." This Agreement does not govern any termination of Executive's employment with Bank which occurs prior to a "Change in Control" as defined in subsect ion (e) o f  this Section.  No inference shall be drawn from any provision of this Section concerning the rights  and obligations of the parties in connection with a termination of Executive's employment prior to a Change in Control. (a) Termination by Company for Cause or Not for Cause. If Executive's employment is terminated by Bank (i) for "Cause" (as defined in subsection (c) of this Section) at any  time, or (ii) with or without Cause prior to a Change in Control, Executive shall have no right to any severance under this Agreement due to such termination. If  Executive is terminated by Bank other than for Cause within one (1) year af ter the date of  a Change in Control, Executive's right to a severance payment under this  Agreement shall be as set forth in subsection (f) of this Section. If Executive is terminated by the Bank within the second year after the date of a Change of Control, the severance shall be reduced from 200% to 100% of the calculation as set forth in subsection (f)(i) and (ii) of  this section. (b) Termination by Executive for Good Reason or Not for Good Reason. If  Executive terminates Executive's employment with Bank (i) prior to a Change in Control,  or (i i) without "Good Reason" (as defined in subsection (d) of this Sect ion) at  any t ime, Executive shall have no right to any severance under this Agreement  due to such termination. If  Executive terminates Executive's employment with Bank for Good Reason within one (1) year af ter a transaction resulting in a Change in Control is consummated, Executive's right to a severance payment under this Agreement shall be as set forth in subsection (f) of this Section. 





 






-2-  T # 475348 v.2# 2871946 v. 1    (c) Definition of "Cause." For the purpose of this Agreement, "Cause" means ac tions of   or failure to act by Executive which would authorize the forfeiture of fringe benefits or  other remuneration under Executive's written contract of employment with the Bank  or, if  there is no written contract of  employment, (I) the willful material failure to  perform the duties to the Bank required of Executive (o ther than any such failure  resulting from incapacity due to physical or mental illness of Executive or material  changes in the direction and policies of the Board of Directors of Bank), if such failure  continues for thirty (30) days after a written demand for substantial performance is   delivered to Executive by the Bank which specifically identifies the manner in which it   is believed that Executive has failed to attempt to perform his or her dut ies here  under; (2) the willful engaging by Executive in misconduct materially injurious to the  Bank; (3) receipt by the Bank of a notice (which shall not  have been appealed by  Executive or shall have become final and non-appealable) of any governmental body  or entity having jurisdiction over the Bank requiring termination or removal of   Executive from his or her then present position, or receipt of  a writ ten d irective o r  order of any governmental body or entity having jurisdiction over the Bank (which  shall not have been appealed by Executive or shall have become f inal and non-  appealable) requiring termination or removal of  Executive f rom his or her then  present position; or (4) personal dishonesty, incompetence, willful misconduct, willful  breach of  f iduciary duty involving personal prof it or conviction of  a felony. For  purposes of this paragraph, no act, or failure to ac t,  on Execut ive's part shall be  considered "willful" unless done or omitted to be done by Executive in bad faith and  without reasonable belief that his or her action or omission was in the best interest of   Bank. Any act or omission to act by Executive in reliance upon a writ ten opinion of   counsel to Bank shall not be deemed to be willful.    (d) Definition of "Good Reason." For purposes of this Agreement, "Good Reason" shall  mean (i) any reduction in title or an adverse change in Executive's responsibilities or  authority which are inconsistent with, or the assignment to Executive of  duties  inconsistent with, Executive's position with the Bank immediately prior to such action;  or (ii) any reduction in Executive's annual base salary as in effect on the date hereof   or as the same may be increased f rom time to time, or (iii) any reassignment of   Executive, on a permanent or temporary basis, to an of f ice located More than 25  miles f rom the Executive’s of f ice as of  the date of  this Agreement, unless such  reassignment results in the Executive’s office being closer to Execut ive’s primary  residence or does not substantially increase the average commuting time of  the  Executive.    (e) Definition of “Change in Control." For purposes of  this Agreement, a "Change in  Control" of the Bank shall mean:  (i) There occurs a merger, consolidation or other business combination or  reorganization to which the Bank is a party, whether or not approved in  advance by the Board of Directors of the Bank, in which (A) the members of   the Board of Directors of the Bank immediately preceding the consummation  of  such transaction do not constitute a majority of the members of the Board  of  Directors of the resulting corporation and of any parent corporation thereof  immediately af ter the consummation of  such transaction, and (B) the  shareholders of the Bank immediately before such transact ion do not  hold  more than f ifty percent (50%) of the voting power of securities of the resulting  corporation;  (ii) There occurs a sale, exchange, transfer, or other disposition of at least f i f ty  percent (50%) of the assets of the Bank to another ent ity , whether o r not   approved in advance by the Board of Directors of the Bank (f or purpose of   this Agreement, a sale of more than one-half of the b ranches of  the Bank  would constitute a Change in Control, but for purposes of this paragraph, no  





 






-3-  T # 475348 v.2# 2871946 v. 1    branches or assets will be deemed to have been sold if they are leased back  contemporaneously with or promptly after their sale);  (iii) A plan of liquidation or dissolution is adopted for the Bank; or  (iv) Any "person" or any group of "persons" (as such term is defined in Sections  13(d) and 14(d) of the Exchange Act), as if such provisions were applicable  to the Bank, other than the holders of shares of the Bank's common stock in  existence on the date of the Opening for Business, is or shall become the  ''beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), as  if   such rule were applicable to the Bank, directly or indirectly, of  securities of   the Bank representing 50% or more of the combined vot ing power of  the  Bank's then outstanding securities.  (v) For purposes of this agreement, the date of the Change of Control shall be  the calendar date upon which a change of control event occurs. However, i f   an executive is terminated for other than Cause during the period between  when a written undertaking outlining the principal conditions of  a  contemplated change of control transaction (including, but no t l imited to, a  letter of  interest or intent) is executed by the parties and the date of  the  Change of  Control, the Executive shall be entitled to the same compensation  and benef its as the Executive would have received had the Execut ive been  terminated in the first year following the Change of Control date.    (f ) Severance. If  Executive is entitled to severance under subsection (a) o r (b ) of  this  Section, Bank shall pay as severance to Executive the sum of the following amounts   in a single lump sum within 60 days following the date of  his termination of   employment, subject to all tax withholding obligations of the Bank: (i) two  hundred  percent (200%) of the highest rate of base annual salary that was payable to o r for  the benef it of Executive at any time during the 12-month period ending on the date of   Executive's termination of employment; and (ii) two hundred percent (200%) of  the  average of the aggregate annual performance bonuses that have been earned by the  Executive for performance by the Executive during each of the three (3) most recent  f iscal years of the Bank ended with or prior to the date of Executive's terminat ion of   employment. If Executive shall not have been employed by the Bank for three (3) ful l   f iscal years prior to the time the Executive becomes entitled to severance payments  under this Section, the average used shall be determined based on the number of full  and partial fiscal years of the Bank in which the Executive was so employed and that   have ended with or prior to the date of Executive's termination of employment.    (g) Any termination of  Executive's employment by Bank or by Executive shall be  communicated by a dated, written notice, signed by the party giving the notice, which  shall (i) indicate the specific termination provision in this Agreement relied upon; (i i)  set forth in reasonable detail the facts and circumstances claimed to provide a basis  for termination of Executive's employment under the provision so indicated; and (i i i)  specify the ef fective date of  termination. In addition, Executive shall not be  considered to have terminated his employment for Good Reason unless he provides  such written notice to the Bank within 90 days of  Executive’s being notif ied or  otherwise becoming aware of  the initial existence of  a condition creating Good  Reason, and upon notice of which the Bank must be provided a period of at least  30  days during which it may remedy the condition and not be required to pay the  severance payment.    (h) Notwithstanding any provision of this Agreement to the contrary, if, as a result  of  a  payment provided for under or pursuant to this Agreement, together with al l  other  payments in the nature of  compensation provided to or for the benef it of  the  Executive under any other plans or agreements in connection with a Change in  Control, the Executive becomes subject to excise taxes under Sect ion 4999 of  the  Code, then the amount of severance to be paid pursuant to this Agreement shall be  





 






-4-  T # 475348 v.2# 2871946 v. 1    reduced to the maximum amount allowable without causing Execut ive to become  subject to such excise taxes. Such maximum amount shall be determined by a  registered public accounting firm selected by the Compensation Committee of  the  Board of Directors of the Bank, whose determination, absent manifest error, shall be  treated as conclusive and binding.    (i) Executive shall not be required to mitigate the amount of any payment provided for in  this Agreement by seeking other employment or otherwise. The severance payment  provided for in this Agreement shall not be reduced by any compensat ion o r other  payments received by Executive af ter the date of  termination of  Executive's  employment from any source.    4. Payment Obligations Absolute. Provided that the preconditions for payment set forth in  this Agreement are fully satisfied, Bank's obligation to pay Execut ive the severance  payment provided herein shall be absolute and unconditional and shall not be affected by  any circumstances, including, without limitation, any set-off counter claim,  recoupment,   defense or other right which Bank may have against Executive. All amounts payable by   Bank hereunder shall be paid without notice or demand.    5. Executive's Covenants. Executive agrees to the restrictions set forth in this Section.    (a) Executive covenants and agrees that Executive will not at any time, either during his   or her employment with the Bank or thereafter, use, disclose or make accessible to  any other person, firm, partnership, corporation or any other entity any Conf ident ial  and Proprietary Information (as defined herein), other than to (i) Executive's attorney  or spouse in confidence, (ii) while employed by the Bank, in the business and for the  benef it of  the Bank, or (iii) when required to do so by a court of  competent  jurisdiction, any government agency having supervisory authority over the business  of  the Executive or the Bank or any administrative body or legislative body, including  a committee thereof, with jurisdiction. For purposes of this Agreement, "Confidential  and Proprietary Information" shall mean non-public, conf ident ial,  and proprietary  information provided to the Executive concerning, without  l imitat ion ,  the Bank's  f inancial condition and/or results of operations, statist ical data,  products,  l ists of   customers or customer information, information relating to marketing plans,  management development reviews, including information regarding the capabil it ies  and experience of the Bank's employees, compensation, recruiting and training , and  human resource policies and procedures, policy and procedure manuals , together  with all materials and documents in any form or medium (including oral, written,  tangible, intangible, or electronic) concerning any of the above, and other non-public,  proprietary and conf idential information of  the Bank; provided, however, that  Conf idential and Proprietary Information shall not include any information that is   known generally to the public or within the industry other than as a result of   unauthorized disclosure by the Executive. It is specifically understood and agreed by  the Executive that any non-public information received by the Executive during  Executive's employment by the Bank is deemed Conf idential and Proprietary  Information for purposes of this Agreement. In the event the Executive's employment   is terminated for any reason, the Executive shall immediately return to the Bank upon  request all Confidential and Proprietary Information in Executive's  possession or  control.    (b) Executive agrees that during his or her employment with the Bank and for a period of   twelve (12) months thereafter, provided that Executive has received or is ent itled to  receive severance hereunder, unless the Executive obtains the Bank's prior writ ten  permission, which may be granted or denied at the Bank's sole and absolute  discretion, the Executive shall not: (i) solicit or divert to any competitor of the Bank or,  upon termination of the Executive's employment with the Bank, accept any business  





 






-5-  T # 475348 v.2# 2871946 v. 1    f rom any individual or entity that is a customer or a prospective customer of the Bank,  to the extent that such prospective customer was identifiable as such prior to the date  of  the Executive's termination , except that this covenant of non-solicitation shall not  apply with respect to anyone who, while having previously been a customer or  prospect of the Bank, is no longer a customer or prospect of the Bank at the t ime of   the solicitation ; or (ii) Induce or encourage any officer and/or employee of the Bank  to leave the employ of the Bank, hire any individual who  was an employee of  the  Bank as of the date of the termination of the Executive's, or induce or encourage any  customer, vendor, participant, agent or other business relation of the Bank to cease  or reduce doing business with the Bank or in any way interfere with the relat ionship  between any such customer, vendor, participant, agent or other business relation and  the Bank.    (c) For a period of  twelve (12) months, af ter any resignation or termination of    Executive's employment for any reason, provided that Executive has received or is   entitled to receive severance hereunder, Executive shall not, direc tly o r indirect ly ,  within 25 miles f rom the Executive’s primary work location as of  the Change of   Control date, enter into or engage directly or indirectly in competition with the Bank or  any subsidiary or other company under common control with the Bank, in any  f inancial services business conducted by the Bank or any such subsidiary at the time  of  such resignation or termination, either as an individual on his own or as a partner  or joint venture, or as a director, officer, shareholder, employee, agent, independent  contractor, nor shall Executive assist any other person or entity in engaging d irec tly  or indirectly in such competition.    6. Amendments. No amendments to this Agreement shall be binding unless in writing,  signed by both parties, which states expressly that it amends this Agreement.    7. Notices. Notices under this Agreement shall be deemed sufficient and ef fect ive if  (i) in  writing and (ii) either (A) when delivered in person or by facsimile, e-mail,  telegraph or  other electronic means capable of being embodied in written form or (B) forty-eight  (48)  hours af ter deposit thereof in the U.S. mails by certified or registered mail, return receipt   requested, postage prepaid, addressed to each party at such party's address f irst set   forth above and, in the case of Bank, to the attention of the Chairman of the Board, o r to  such other notice address as the party to be notified may have designated by wri t ten  notice to the sending party.    8. Prior Agreements. There are no other agreements between Bank and Executive  regarding Executive's employment as of the date of this Agreement. This Agreement  is  the entire agreement of the parties with respect to its subject matter and supersedes any  and all prior or contemporaneous discussions, representations, understandings or  agreements regarding its subject matter    9. Assigns and Successors. The rights and obligations of Bank under this Agreement shall  inure to the benefit of and shall be binding upon the successors and assigns of Bank and   Executive, provided, however, that Executive shall not assign o r ant icipate any of his   Rights hereunder, whether by operation of the law or otherwise. For purposes of the this  Agreement "Bank" shall also refer to any successor to Bank, whether such succession  occurs by merger, consolidation, purchase and assumption, sale of assets or otherwise.    10. Executive's Acknowledgement of Terms. Executive acknowledges that he o r she has  read the Agreement fully and carefully, understands its terms and it  has been entered  into by Executive voluntarily. Executive acknowledges that any payments be made  hereunder will constitute additional compensation to Executive.     





 






-6-  T # 475348 v.2# 2871946 v. 1   IN WITNESS WHEREOF, the parties hereto have caused the due execution of this Agreement as  of  the date first set forth above.       Attest:       /s/AnNette Hines    Print Name: AnNette Hines  Title: Executive Assistant  Bank:  CUSTOMERS BANK     By: /s/Richard A. Ehst     Print Name: Richard A. Ehst  Title: President and COO   Witness:     /s/ Charles J. Margiotti III     Print Name: Charles J. Margiotti III  Executive:     /s/Lyle P. Cunningham     Print Name: Lyle P. Cunningham