Exhibit (10)E
SEPARATION AGREEMENT
This Separation Agreement (this "Agreement") is made by and between Xxxxx X.
Xxxxx (hereinafter "Xxxxx") and FNB Corporation (hereinafter "FNB"). Each
reference to "FNB" in this Agreement includes FNB Corporation, its corporate
affiliates and subsidiaries.
In exchange for the mutual commitments and other consideration contained in
this agreement, the parties agree as follows:
1. Xxxxx has elected to resign his position as Executive Vice President and
CAO of FNB Corporation and all other positions or offices he holds or
has held as an officer and employee of FNB, including but not limited to
Corporate Secretary and Registered Agent of the Corporation, and has
submitted his resignation effective at the close of business on
October 11, 2003. FNB has accepted Xxxxx'x resignation of employment on
the date proposed by Xxxxx and has accepted his resignation from all
other offices and positions now or previously held by him. This
Agreement supersedes and nullifies all prior employment agreements
existing between Xxxxx and FNB.
2. In consideration of the foregoing and the other covenants and conditions
hereinafter set forth FNB agrees as follows:
a. In the event Xxxxx hires a Real Estate Broker to sell his
current dwelling located at 000 Xxxxxxxx Xxxxx in
Christiansburg, Virginia, then FNB will pay up to one-half of
the Broker's commission but not to exceed 3% of the sales price.
Upon the closing of the sale of such residence, Xxxxx shall
submit the closing statement to FNB and FNB shall make such
reimbursement based on the sales price indicated on such
settlement statement to Xxxxx within 5 business days.
b. FNB agrees to extend, and does hereby extend, the time period
for exercising the right to purchase his vested stock options
for a period of ninety (90) days. Xxxxx may exercise said
options within ninety (90) days of October 11, 2003.
c. FNB will continue paying Xxxxx'x base salary for a period of
three (3) months beginning October 11, 2003 and payable at
regular paydays, less applicable withholdings. The total sum to
be paid is ($39,498.00).
d. In the event it is determined that a Stakeholder's payout is
warranted for the quarters ending September 30, 2003 and
December 31, 2003, then Xxxxx will be paid his share as
provided in said plan, less withholding.
x. Xxxxx shall continue to participate in FNB's Cafeteria Plan on
the same terms as immediately prior to his resignation until the
earlier of (1) January 10, 2004 or (2) until he becomes a
participant in the welfare benefit plan sponsored by his new
employer.
f. The parties acknowledge that a total of 1,650 shares (including
the entire March 3, 2002 stock dividend) has vested and been
delivered to Xxxxx, pursuant to a Restricted Stock Grant dated
7/27/2000. The remaining unvested grant, representing l,000
shares, will be delivered to Xxxxx upon execution hereof.
3. In consideration of the foregoing promises and the performance thereof,
Xxxxx acknowledges that the consideration described in Paragraph 2,
above, is in exchange for his covenants and promises in this Separation
Agreement and exceeds any amounts to which he would be entitled under
any law, regulation, contract, or FNB policy or benefit plan.
4. Xxxxx will not disparage FNB; its directors, officers and employees; or
its business reputation, to any person or entity, and that at all times
he will conduct himself in a manner intended and reasonably designed to
promote and preserve the goodwill and reputation of FNB. Xxxxx further
agrees to reasonably cooperate with and assist FNB in any legal dispute
or regulatory matter in which FNB may become involved, including
providing information or documents, submitting to depositions, and
providing testimony, if required, related to events which predate this
Agreement. FNB and the FNB Covered Persons (as hereinafter defined)
similarly agree that it will not disparage Xxxxx and will at all times
act in a manner intended and reasonably designed to promote and preserve
Xxxxx'x goodwill and reputation. FNB shall also shall take reasonable
steps to cause its directors, officers and employees who are not privy
to this Agreement to act in a manner intended and reasonably designed to
promote and preserve Xxxxx' goodwill and reputation.
5. Xxxxx will not, as an owner, employee, or independent contractor,
directly or indirectly, (i) solicit, or attempt to solicit, any employee
of FNB to terminate his or her relationship with FNB in order to become
an employee, consultant, or independent contractor for any other person
or entity; (ii) solicit, interfere with, or endeavor to entice away from
FNB, any of its customers within a 50-mile radius of FNB's trading area.
Said area shall be deemed to include all areas located within fifty (50)
miles by highway from the nearest location of an office of FNB
Corporation or one of its affiliates as constituted on the 11th day of
October; or (iii) assist any other person or entity in taking any of the
actions described in (i) and (ii) above. The provisions of this
paragraph shall terminate and cease to have any effect on October 10,
2004.
6. Xxxxx agrees to preserve the confidentiality of all confidential or
proprietary information acquired as a result of his employment with FNB,
including FNB's commercial, financial, and payroll information. Such
confidential and proprietary information includes, but is not limited
to, information about trade secrets, budgets, costs, markets,
strategies, plans for future development, business goals, customer
lists, and other business and commercial information about or owned by
FNB, its subsidiaries, and its affiliated companies.
7. Xxxxx, on behalf of himself and his heirs, personal representatives, and
assigns, forever releases FNB and the FNB Covered Persons (as
hereinafter defined) from any and all claims, demands, causes of action,
damages, liabilities, or obligations of any kind or nature whatsoever
(collectively "Claims") arising out of his employment with FNB,
including the termination of that employment, or arising out of any
other event, act, or communication occurring prior to the effective date
of this Agreement, including all matters and things now known and all
matters and things which may hereafter be discovered, if such there be.
Xxxxx further covenants not to xxx, or initiate any other proceeding,
including arbitration, with respect to such Claims or causes of action,
and affirms that he has filed no claims or asserted any causes of action
of any nature against FNB. This includes but is not limited to Claims
under federal, state, or local laws prohibiting employment
discrimination, including Claims under the Age Discrimination in
Employment Act (ADEA), and any other statutory or regulatory claims of
any nature, and any claims or causes of action based on contract, tort,
or common law.
8. FNB and the FNB Covered Persons (as hereinafter defined) forever release
Xxxxx from any and all claims, demands, causes of action, damages,
liabilities, or obligations of any kind or nature whatsoever
(collectively "Claims"), arising out of his employment with FNB,
including the termination of that employment, or arising out of any
other event, act, or communication occurring prior to the effective date
of this Agreement, including all matters and things now known and all
matters and things which may hereafter be discovered, if such there be.
FNB further covenants not to xxx, or initiate any other proceeding,
including arbitration, with respect to such Claims or causes of action,
and affirms that it has filed no claims or asserted any causes of action
of any nature against Xxxxx. This includes but is not limited to claims
or causes of action under federal, state, or local laws, and any claims
or causes of action based on contract, tort, or common law.
9. Notwithstanding any other provision of this Agreement, the parties agree
that this Agreement is not intended to and shall not be construed as a
release or waiver of such rights as Xxxxx may have for indemnity as a
former officer under state law, or the bylaws of FNB or any of its
subsidiaries, for acts or omissions occurring on or before October 11,
2003, or his right to coverage under FNB's liability policies applicable
to its officers and employees. The parties further agree that this
Agreement is not intended to and shall not be construed to effect
Xxxxx'x rights as a shareholder of the common stock of FNB. Finally,
this Agreement shall not be construed as a release or waiver of any the
legal rights of Xxxxx with respect to the administration of FNB's
Employee Stock Ownership Plan, 401(k) Defined Contribution Plan and the
VBA Non-qualified Deferred Compensation Plan and the benefits due
thereunder.
10. This Agreement shall be governed by and interpreted in accordance with
the laws of the Commonwealth of Virginia without regard to its conflicts
of laws and rules, and the exclusive venue for the resolution of any
disputes relating to this Agreement shall be Xxxxxxxxxx County,
Virginia.
11. Xxxxx acknowledges that the content of this Agreement is intended to be
confidential and that he will not disclose its terms to any party, other
than his attorney, tax advisor, and the FNB Covered Persons (as
hereinafter defined), except as may be required by law, without the
prior written authorization of FNB. FNB acknowledges that the content
of this Agreement is intended to be confidential and that only the most
senior level management and the directors of FNB should be privy to it.
FNB will not disclose the terms of this Agreement to any party other
than most senior level management (including personnel in the Human
Resources Department) directors, attorneys, auditors and tax advisors
(the "FNB Covered Persons"), except as may be required by law, without
the prior written authorization of Xxxxx. FNB shall cause the FNB
Covered Persons to also agree to keep the Agreement confidential and
abide by its terms. If disclosure of this Agreement is sought pursuant
to regulatory authority, each party agrees to notify the other in
writing within 48 hours of the request.
12. It is understood and agreed that this Agreement is not to be construed
as an admission of liability or the commission of any unlawful act or
breach of contractual obligation by either Xxxxx or FNB. Xxxxx and FNB
agree that they will not attempt to introduce this Agreement or any of
its terms as evidence in any legal proceeding, other than a legal
proceeding in which one of the parties to this Agreement asserts that
the other party has breached the provisions of this Agreement. If any
other circumstance should arise in which one of the parties to the
Agreement determines that any of the terms of this Agreement are
relevant and necessary to a legal proceeding, the party seeking to use
this Agreement or any of its terms shall promptly notify the other so
that such other party may protect its interest.
13. When either party desires or is required to give a notice to the other
party pursuant to any term of this Agreement, the notice shall be in
writing and: (i) delivered personally; or (ii) sent by a nationally
recognized overnight delivery service (such as, but not limited to,
Federal Express), all charges prepaid; or (iii) sent by United States
Postal Service certified mail, return receipt requested, postage
prepaid. All notices shall be delivered or sent to the address for each
party set forth below, or such other address as either party notifies
the other of in accordance with the terms of this Agreement. Notices
shall be deemed to have been given upon receipt or refusal to accept by
the party to which the notice is delivered or sent.
If to FNB: FNB Corporation
P. O. Xxx 000
Xxxxxxxxxxxxxx, XX 00000-0000.
If to Xxxxx: 000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxxxx, XX 00000.
14. This Agreement may be executed in one or more counterparts, and each
counterpart shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute one and the same instrument.
Witness the following signatures this the ________ day of __________________,
________.
___________________________________
Xxxxx X. Xxxxx
Witness: _____________________________________
FNB Corporation
BY: ______________________________
Xxxxxxx X. Xxxxx, Xx. CEO
Witness: _____________________________________
