Exhibit 10.2
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), made as of June 22, 2000,
is by and between Premier National Bank, a national banking association having
its principal place of business at Xxxxx 00, XxXxxxxxxxxxx, Xxx Xxxx 00000 (the
"Company"), and Xxxxxx X. Xxxxxxxx, residing at 00 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx
Xxxx, 00000 (the "Executive").
W I T N E S S E T H:
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WHEREAS, the Company, a wholly-owned subsidiary of Premier (as
hereinafter defined), has determined that it is in its best interests to employ
the Executive as an Executive Vice President/Senior Trust Officer pursuant to a
written employment agreement, as hereinafter provided; and
WHEREAS, the Executive desires to accept such employment, upon the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in furtherance of the interests described above and in
consideration of the respective covenants and agreements contained herein, the
parties hereto agree as follows:
1. Agreement of Employment. During the term of employment provided
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for in this Agreement, the Company agrees to employ the Executive, and the
Executive agrees to accept employment and to serve the Company, as Executive
Vice President/Senior Trust Officer, all upon the terms and conditions
hereinafter set forth.
2. Term.
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(a) Effective Date. This Agreement and the employment of the
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Executive under this Agreement shall become effective as of June 22, 2000 (the
"Effective Date").
(b) Duration of Agreement. This Agreement shall terminate on the
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twelve (12) month anniversary of the Effective Date (the "Initial Term"), but
shall be extended automatically for additional one year periods (each, a
"Renewal Term") unless the Company or the Executive gives written notice to the
other party that the Agreement shall not be so extended at least twelve (12)
months prior to the expiration of the Initial Term or any Renewal Term (a
"Failure to Renew"), in which case this Agreement shall terminate on the
expiration of such Initial Term or such Renewal Term; provided, however, that
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after a Change in Control (as hereinafter defined) no termination of this
Agreement pursuant to a Failure to Renew by the Company shall be effective prior
to the expiration of eighteen (18) months after such Change in Control (such
period being
referred to herein as the "CIC Coverage Period"). Notwithstanding any other
provision of this Agreement, nothing contained in this Agreement shall prohibit
or prevent the continued employment of the Executive by the Company, as
Executive Vice President/Senior Trust Officer or in any other capacity, after
the termination of this Agreement as a result of a Failure to Renew. Except as
specifically set forth herein, the terms and provisions of this Agreement shall
not govern, control or be applied to any such continued employment of the
Executive by the Company in any capacity after the termination of this Agreement
as a result of a Failure to Renew. Notwithstanding any other provision of this
Agreement, nothing contained in this Agreement shall be deemed to create any
obligation on the part of the Company or the Executive to extend this Agreement
beyond the Initial Term or any Renewal Term.
(c) Duration of Employment Pursuant to this Agreement.
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Notwithstanding any Failure to Renew this Agreement, the employment of the
Executive under this Agreement shall be terminated only pursuant to, and in
compliance with, the terms and conditions set forth in Section 6 herein. A
Failure to Renew this Agreement in and of itself shall not (i) constitute
termination of the employment of the Executive under this Agreement pursuant to,
or for purposes of, any provision of Section 6 herein or (ii) give rise to any
obligation on the part of the Company to make, or any right on the part of the
Executive to receive, any payments or other benefits provided for pursuant to
Section 6 herein.
3. Duties. The Executive shall perform the duties and discharge the
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responsibilities of Executive Vice President/Senior Trust Officer of the
Company, [all as set forth in the Bylaws of the Company,] and shall perform all
other duties and responsibilities as may reasonably be assigned from time to
time by the Chief Executive Officer of the Company. The Executive agrees to
devote substantially all of his business time to the Company's business and
affairs and the performance of the services provided for herein.
4. Compensation. For the services rendered by the Executive to the
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Company under this Agreement, the Company shall compensate the Executive as
follows:
(a) Salary. The Company shall pay the Executive for services an
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annual salary of $102,000.00 (the "Annual Base Salary"), payable in accordance
with the payroll practices of the Company applicable to all employees and
subject to periodic review and increase in accordance with the Company's salary
administration program and policies as may be in effect from time to time.
(b) Bonus and Executive Benefits. The Executive shall be entitled
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to participate, on an equitable basis with other executive personnel of the
Company, in such bonus programs as the Company may extend from time to time to
its executive personnel. The Executive shall be entitled to receive, on the same
basis as other executive personnel of the Company, group employee benefits such
as sick leave, group disability and health,
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life and accident insurance and similar benefits as the Company may extend from
time to time to its employees.
(c) Other Benefits. The Executive shall be entitled to receive such
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additional benefits as are set forth in Schedule 1 hereto on the terms and
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conditions set forth in such schedule.
5. Reimbursement of Business Expenses. The Company shall promptly
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reimburse the Executive for all reasonable travel and other business expenses
incurred by him in the performance of his duties and responsibilities hereunder,
subject to such reasonable requirements with respect to substantiation and
documentation as may be specified by the Company.
6. Termination.
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(a) Termination for Cause. The Company may terminate the employment
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of the Executive hereunder if the Executive (i) commits any violation of any
law, rule or regulation or of a cease and desist order with respect to Premier,
the Company or any of their subsidiaries (each hereinafter referred to as a
"Subsidiary") which has become final, (ii) engages or participates in any unsafe
or unsound practice in connection with Premier, the Company or any Subsidiary
regardless of whether actual harm or damages result to Premier, the Company or
any Subsidiary, (iii) commits or engages, or fails to commit or engage, in any
act or practice, which action or practice or the failure to engage in such
action or practice involves personal dishonesty on the part of the Executive or
demonstrates a willful or continuing disregard for the best interests of
Premier, the Company, or any Subsidiary, (iv) is adjudicated to be of an unsound
mind, (v) is adjudicated to be bankrupt, (vi) intentionally destroys the
property of Premier, the Company or any Subsidiary, (vii) breaches or violates
in any material respect any agreement with Premier, the Company or any
Subsidiary signed by the Executive, including, but not limited to, this
Agreement and any other confidentiality and nondisclosure agreements, (viii)
engages in dishonorable or disruptive behavior, practices or acts that would be
reasonably expected to harm or bring into disrepute Premier, the Company or any
Subsidiary, or any of their businesses or employees, (ix) is convicted of a
felony, or (x) continually fails to substantially perform his duties under
Section 3 hereof for a period of thirty (30) days (other than as a result of a
disability pursuant to Section 6(g) hereof) after delivery by the Company to the
Executive of a written demand for substantial performance, stating with
reasonable detail the nature of such failure and affording the Executive an
opportunity, as soon as practicable, to correct the acts or omissions specified.
Termination pursuant to this Section 6(a) shall be referred to herein as a
"Termination for Cause." A Termination for Cause shall be effective immediately
upon written notification thereof by the Company unless otherwise specified in
the written notice. Upon a Termination for Cause, whether such Termination for
Cause occurs prior or subsequent to a Change in Control (as hereinafter
defined), the Company shall have no further obligation to pay the Executive's
Annual Base Salary or to provide any employee or other benefits hereunder except
for any Annual Base Salary or other such benefits that
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have fully accrued and vested but not been paid as of the effective date of such
termination.
(b) Termination Without Cause. At any time after the Effective Date,
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the Company may terminate the employment of the Executive hereunder without
cause for any reason. Such termination shall be effective by the Company
providing the Executive with a written notice of termination at least thirty
(30) days prior to the effective date of such termination. Termination pursuant
to this Section 6(b) shall be referred to herein as "Termination Without Cause."
(c) Termination by the Executive for Good Reason. At any time after
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the Effective Date, the Executive may terminate his employment hereunder if any
one or more of the following occurs without the written consent of the
Executive: (i) a reduction by the Company in the Executive's Annual Base Salary
as in effect on the Effective Date or as the same may be increased from time to
time; (ii) the failure by the Company to pay to the Executive any portion of the
Executive's then-current compensation, or to pay to the Executive any portion of
an installment of deferred compensation under any deferred compensation program
of the Company, in each case within seven (7) days of the date such compensation
is due; (iii) any failure by the Company to comply with and satisfy Section
10(b) hereof; (iv) any material breach by the Company of this Agreement if such
breach is not cured within a period of thirty (30) days after delivery by the
Executive to the Company of a written notice stating with reasonable detail the
nature of such breach and affording the Company an opportunity, as soon as
practicable, to cure such breach; (v) the Executive is required by the Company
to occupy a position or positions in the Company, the function or functions of
which is or are materially inconsistent with the Executive's skills and
experience at that time; (vi) after or in connection with any Change in Control
(as hereinafter defined), the Executive is required to be based at any office or
location that is more than fifty (50) miles from the nearer of (A) the
Executive's residence or (B) the Company's administrative headquarters
immediately prior to the Change in Control. Termination pursuant to this
Section 6(c) shall be referred to herein as a "Termination for Good Reason." A
Termination for Good Reason shall be effective immediately upon written
notification thereof by the Executive.
(d) Benefits in the Event of a Termination Without Cause or a
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Termination for Good Reason. In the event of a Termination Without Cause or a
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Termination for Good Reason the Executive shall be entitled to the following:
(i) If a Termination Without Cause or a Termination
for Good Reason occurs at any time other than during the CIC Coverage
Period, the Company shall be obligated to make an undiscounted lump
sum payment to the Executive equal to the Executive's Annual Base
Salary as in effect on the effective date of such termination (without
giving effect to any reduction in Annual Base Salary described in
Section 6(c)(i) hereof), such payment to be made within ten
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(10) business days of the effective date of such Termination Without
Cause or Termination for Good Reason, as the case may be.
(ii) If a Termination Without Cause or a Termination
for Good Reason occurs during the CIC Coverage Period, the Executive
shall be entitled to an undiscounted lump sum payment equal to the
product of (A) the Executive's Annual Base Salary as in effect on the
effective date of such termination (without giving effect to any
reduction in Annual Base Salary described in Section 6(c)(i) hereof)
and (B) one and one-half (1 1/2) years.
(e) Termination by the Executive Without Good Reason. The Executive
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may voluntarily terminate his employment hereunder without cause for any reason
other than the occurrence of any event set forth in Section 6(c) hereof by
providing the Company with a written notice of termination at least forty-five
(45) days prior to the effective date of such termination. Termination pursuant
to this Section 6(e) shall be referred to herein as a "Termination Without Good
Reason." Upon a Termination Without Good Reason, whether such Termination
Without Good Reason occurs prior or subsequent to a Change in Control (as
hereinafter defined), the Company shall have no further obligation to pay the
Executive's Annual Base Salary or to provide any other employee or other
benefits hereunder except for any Annual Base Salary or other such benefits that
have fully accrued and vested but not been paid as of the effective date of such
termination.
(f) Death. The employment of the Executive hereunder shall terminate
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automatically effective as of the death of the Executive, in which case the
Company shall have no further obligation to pay the Executive's Annual Base
Salary or to provide any other employee or other benefits hereunder except for
any Annual Base Salary or other such benefits that have fully accrued and vested
but not been paid as of the effective date of such termination.
(g) Disability. If, during the Initial Term or any Renewal Term, the
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Executive suffers an illness or incapacity of such a character as to prevent or
preclude him from devoting substantially full working time to his employment
hereunder or otherwise from carrying out any substantial portion of the normal
and usual duties of his employment hereunder for 180 days (whether or not
consecutive) during any twelve-month period, then the employment of the
Executive hereunder may be terminated by the Company (a "Disability
Termination") upon thirty (30) days' prior written notice to the Executive, such
Disability Termination to be effective as of the expiration date of such thirty
(30) days' notice. During the period of the Executive's disability and until
the expiration date of such thirty (30) days' notice, the Executive shall
continue to earn all compensation provided herein as if he had not been
disabled, such compensation to be paid at the time, in the amounts, and in the
manner provided for herein. Upon the effectiveness of any Disability
Termination, whether such Disability Termination occurs prior or subsequent to a
Change in Control (as hereinafter defined), the Company shall have no further
obligation
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to pay the Executive's Annual Base Salary or to provide any other employee or
other benefits hereunder except for any Annual Base Salary or other such
benefits that have fully accrued and vested but not been paid as of the
effective date of such termination.
(h) Change in Control. As used in this Agreement, "Change in
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Control" shall mean a change in control of Premier National Bancorp, Inc., a New
York corporation, or any successor thereto ("Premier"), of a nature that would
be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or in response to any similar item on any similar schedule or
form) promulgated under the Securities Exchange Act of 1934, as amended from
time to time, whether or not Premier is then subject to such reporting
requirement; provided, however, that without limitation, a Change in Control
shall be deemed to have occurred if:
(i) Premier consummates a merger, consolidation, share
exchange, division or other reorganization or transaction of Premier
(a "Fundamental Transaction") with any other corporation, other than a
Fundamental Transaction that the Board of Directors of Premier
declares a "Merger of Equals" or that results in the voting securities
of Premier outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) at least fifty-one percent
(51%) of the combined voting power immediately after such Fundamental
Transaction of (i) Premier's outstanding securities, (ii) the
surviving entity's outstanding securities, or (iii) in the case of a
division, the outstanding securities of each entity resulting from the
division;
(ii) the shareholders of Premier approve a plan of
complete liquidation or winding-up of Premier or an agreement for the
sale or disposition (in one transaction or a series of transactions)
of all or substantially all of Premier's assets;
(iii) as a result of a proxy contest, individuals who,
prior to the conclusion thereof, constituted the Board of Directors of
Premier (including for this purpose any new director whose election or
nomination for election by Premier's shareholders in connection with
such proxy contest was approved by a vote of at least two-thirds (2/3)
of the directors then still in office who were directors prior to such
proxy contest) cease to constitute at least a majority of the Board of
Directors of Premier (excluding any Board of Directors seat that is
vacant or otherwise unoccupied); or
(iv) the Board of Directors of Premier determines that a
Change in Control has occurred.
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(i) Continued Benefits. After any Termination Without Cause pursuant
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to Section 6(b) or any Termination for Good Reason pursuant to Section 6(c),
whether prior or subsequent to a Change in Control, the Company shall provide
the Executive with life and health insurance benefits substantially similar to
those which the Executive is receiving immediately prior to the effective date
of such Termination Without Cause or Termination for Good Reason (such effective
date being referred to as the "Date of Termination"), as the case may be, for
(i) with respect to any such termination that occurs at any time other than
during the CIC Coverage Period, a twelve-month period beginning on the Date of
Termination, and (ii) with respect to any such termination that occurs during
the CIC Coverage Period, an eighteen (18) month period beginning on the Date of
Termination (the applicable period described in the preceding clause (i) or (ii)
being referred to as the "Benefits Period"). Benefits otherwise receivable by
the Executive pursuant to this Section 6(i) shall be reduced to the extent
comparable benefits are actually received by or made available to the Executive
by any other employer(s) during the Benefits Period at a cost to the Executive
that is commensurate with the cost incurred by the Executive immediately prior
to the Date of Termination; provided, however, that if the Executive becomes
employed by a new employer which maintains a medical plan that either (A) does
not cover the Executive or a family member or dependent with respect to a
preexisting condition which was covered under the applicable Company medical
plan, or (B) does not cover the Executive or a family member or dependent for a
designated waiting period, the Executive's coverage under the applicable Company
medical plan shall continue until the earlier of the end of the applicable
period of noncoverage under the new employer's plan or the end of the applicable
period as set forth in this Section 6(i). If health insurance benefits are
provided or made available to the Executive by any other employer(s) of the
Executive during the Benefits Period at a cost that is not commensurate with the
cost incurred by the Executive immediately prior to the Executive's Date of
Termination, the Company may, at its election, make periodic cash payments to
the Executive that are sufficient to reimburse the Executive, in advance and on
a before-tax basis, for the additional cost incurred by the Executive for such
health insurance benefits. During any period with respect to which the Company
makes such reimbursement payments to the Executive, the Executive shall be
treated herein as receiving such health insurance benefits at a cost that is
commensurate with the cost incurred by the Executive immediately prior to the
Executive's Date of Termination. The Executive shall be entitled to elect to
change his level of coverage and/or his choice of coverage options (such as
Executive only or family medical coverage) with respect to the benefits to be
provided by the Company to the Executive to the same extent that active
employees of the Company are permitted to make such changes; provided, however,
that in the event of any such change the Executive shall pay the amount of any
cost increase that would actually be paid by an active employee of the Company
by reason of making the same change in his level of coverage or coverage
options. Any such benefits actually received by or made available to the
Executive from such other employer(s) shall be reported to the Company by the
Executive.
(j) Limitation on Certain Benefits. Notwithstanding any other
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provision of this Agreement, in the event that any payment or benefit received
or to be received by
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the Executive in connection with a Change in Control or the termination of the
Executive's employment pursuant to Section 6 hereof (whether under the terms of
this Agreement or any other plan, arrangement or agreement) (all such payments
and benefits, including the payments and benefits provided for hereunder, being
hereinafter called "Total Payments") would not be deductible (in whole or part)
by the Company, an affiliate or other person or entity making such payment or
providing such benefit as a result of section 280G of the Internal Revenue Code
of 1986, as amended (the "Code"), then, to the extent necessary to make such
portion of the Total Payments deductible, (A) any cash payments provided for by
Section 6 hereof shall first be reduced (if necessary, to zero), and (B) any
non-cash benefits provided for by Section 6 hereof shall next be reduced. For
purposes of this limitation, no portion of the Total Payments the receipt or
enjoyment of which the Executive shall have waived by written notice to the
Company prior to the date of any cash payment provided for by Section 6 hereof
shall be taken into account. All determinations required to be made under the
provisions of this Section 6(j) shall be made by tax counsel selected by the
Company's or Premier's independent auditors and reasonably acceptable to the
Executive.
(k) Survival. Notwithstanding any other provision herein, the
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Company's obligations to make payments and provide benefits pursuant to the
terms and conditions set forth in this Section 6 shall survive termination of
employment under this Agreement pursuant to this Section 6 hereof and/or
termination of this Agreement by reason of a Failure to Renew pursuant to
Section 2(b) hereof.
7. Confidentiality. The Company and the Executive acknowledge that
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each of Premier and the Company competes in a highly competitive industry and in
competitive markets and that, as an executive officer of the Company, the
Executive may have access to proprietary and confidential information, technical
information and trade secrets of Premier, the Company and/or a Subsidiary.
During the term of the Executive's employment hereunder and thereafter, the
Executive agrees that he will not, without the written consent of the Company,
disclose or permit any person under his control to disclose to any person or
entity not properly entitled to the information or use in any way for his own
benefit or the benefit of any other person or entity other than Premier, the
Company or any Subsidiary any confidential or proprietary information or
technical information or any trade secret of or relating to Premier, the Company
or any Subsidiary other than (a) information that is publicly disseminated or
(b) as required by any court, supervisory authority, administrative agency or
applicable law. Notwithstanding any other provision herein, the provisions of
this Section 7 shall survive termination of employment under this Agreement
pursuant to Section 6 hereof and/or termination of this Agreement by reason of a
Failure to Renew pursuant to Section 2(b) hereof.
8. Competition.
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(a) Noncompete Agreement. In consideration of the Company's
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agreement to employ the Executive hereunder, the Executive hereby agrees that
during the Noncompete Period (as hereinafter defined), without the prior written
approval of the
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Company, the Executive shall not, directly or indirectly, enter into or in any
manner take part in any business, either individually or as an officer,
director, employee, agent, consultant, partner, investor (excluding passive
investments in publicly traded securities not aggregating more than 1% of any
such entity's total outstanding voting securities), principal or otherwise,
which is in competition with the business of Premier, the Company or any
Subsidiary in any business in which Premier, the Company or any Subsidiary is
materially engaged on the date of termination in any state or territorial
jurisdiction (including the District of Columbia) in which Premier, the Company
or any Subsidiary is so materially engaged on the date of termination. The
Executive further agrees that during the Noncompete Period he shall not,
directly or indirectly, acting either alone or in concert with others, seek to
(i) influence any employee of Premier, the Company or any Subsidiary to leave or
otherwise terminate his or her employment with such entity or (ii) solicit
business from or otherwise do business or deal with any person or entity who is,
on the date of termination, a customer of Premier, the Company or any
Subsidiary, in connection with any product or service similar to or competitive
with any product or service offered or provided by Premier, the Company or any
such Subsidiary (to such customer or otherwise) on the date of termination.
(b) Certain Definitions.
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(i) As used herein, "Noncompete Period" shall mean the
period commencing on the Effective Date and ending on (i) in the case
of any Termination Without Cause or Termination for Good Reason
occurring subsequent to a Change in Control, the effective date of
such termination pursuant to Section 6, or (ii) in the case of any
other termination of employment pursuant to Section 6 hereof, the
first anniversary of the effective date of such termination pursuant
to Section 6.
(ii) As used herein, the phrase "a customer of Premier,
the Company or any Subsidiary" shall mean any person or entity who
has, at the time, an effective contract with Premier, the Company or a
Subsidiary, as the case may be, under which Premier, the Company or
such Subsidiary provides products, services or a loan. In the case of
any customer which is a subsidiary, division or other business unit,
or a department, agency, authority or other political subdivision or
instrumentality of a municipal, state or federal government (in each
case, a "Unit"), the phrase " a customer of Premier, the Company or
any Subsidiary" shall mean only such Unit, and not any affiliated or
related business unit or any other department, agency or subdivision
of such government (unless such other unit, department, agency or
subdivision is itself a customer of Premier, the Company or a
Subsidiary).
(c) Executive's Acknowledgment. The Executive acknowledges that he has
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carefully read and considered all of the terms of this Agreement, including
particularly
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the terms of this Section 8 and the preceding Section 7, that each of Premier
and the Company has made a substantial investment in Premier's and the Company's
business and that the restrictions provided in this Section 8 and the preceding
Section 7 are reasonable and necessary for Premier's and the Company's
protection. The Executive further acknowledges that damages at law will not be a
measurable or adequate remedy for breach of the covenants contained in this
Section 8 or in Section 7 and, accordingly the Executive consents to the entry
by any court of competent jurisdiction of any order enjoining him from violating
any such covenants. The parties hereto further agree that if, in any judicial
proceeding, a court should refuse to enforce any covenants set forth in this
Section 8 or in Section 7 because of their term or geographical scope, then such
covenants shall be deemed to be modified to permit their enforcement to the
maximum extent permitted by law. Notwithstanding any other provision herein, the
provisions of this Section 8 shall survive termination of employment under this
Agreement pursuant to Section 6 hereof and/or termination of this Agreement by
reason of a Failure to Renew pursuant to Section 2(b) hereof.
9. Governing Law; Consent to Jurisdiction. This Agreement shall in all
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respects, including all matters of construction, validity and performance, be
governed by and construed and enforced in accordance with the laws of the State
of New York applicable to agreements made and to be performed entirely within
such jurisdiction. Each party hereto irrevocably consents to the exclusive
jurisdiction of the courts of the State of New York and the federal courts
situated in the State of New York in connection with any action to enforce the
provisions of this Agreement, to recover damages or other relief for breach or
default under this Agreement, to enforce any decision or award of any
arbitrators, or otherwise arising under or by reason of this Agreement.
10. Successors and Assigns.
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(a) Personal Services Agreement. This Agreement is a personal
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services contract which may not be assigned or delegated by the Executive to, or
assumed from the Executive by, any other person or entity without the prior
written consent of the Company. Subject to the foregoing limitation, this
Agreement and all rights hereunder shall inure to the benefit of and be
enforceable by the parties hereto, their personal or legal representatives,
heirs and permitted successors and assigns. If the Executive should die while
any amounts still are payable to him hereunder if he had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the Executive's estate.
(b) Successors to the Company. In addition to any obligations imposed
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by law upon any successor to the Company, the Company shall be obligated to
require any successor (whether direct or indirect, by purchase, merger,
consolidation, operation of law or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had
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taken place; in the event of such a succession, references to the "Company"
herein shall thereafter be deemed to include such successor. Failure of the
Company to obtain such assumption and agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement.
11. Miscellaneous.
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(a) Notices. Any and all notices required or permitted to be given
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hereunder shall be in writing and shall be deemed to have been given when
delivered personally or by facsimile or, if mailed, upon mailing by certified or
registered mail, postage prepaid, addressed as follows (or at such other address
as may hereafter be designated by notice given in compliance with the terms
hereof):
If to the Executive: Xxxxxx X. Xxxxxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
If to the Company: Premier National Bank
c/o Premier National Bancorp, Inc.
Xxxxx 00
XxXxxxxxxxxxx, Xxx Xxxx 00000
Attention: Chairman of the Board's Personnel and
Compensation Committee
Facsimile: (000) 000-0000
Any party may change by notice the address to which notices to it are to be
addressed.
(b) Waivers. A waiver by any party hereto of any of the terms or
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conditions of this Agreement shall not operate as, constitute or be construed to
be a waiver thereof for the future or of any subsequent breach thereof.
(c) Amendments, Etc. This Agreement may not be varied, altered,
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modified, waived, changed, departed from or in any way amended except by an
instrument in writing executed by the parties hereto or their legal
representatives.
(d) Severability. Any term or provision of this Agreement which is
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invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
affecting the validity or enforceability of any other term or provision hereof
in that or any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted so as to be
enforceable.
(e) Withholding. All payments to the Executive provided for
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hereunder shall be paid net of (a) any applicable Social Security taxes and
withholding taxes required under federal, state or local law or regulation, (b)
any other taxes that may be lawfully
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levied by any governmental authority which may be required by law from time to
time to be withheld and (c) any additional withholding to which the Executive
has agreed.
(f) Counterparts. This Agreement may be executed in any number of
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counterparts, which taken together shall be deemed to constitute one original.
(g) No Right to Continued Employment. Nothing in this Agreement
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shall be deemed to give the Executive the right to be retained in the employ or
service of the Company (or any successor thereto), or to interfere with the
right of the Company (or any successor thereto) to discharge the Executive at
any time, subject in all cases to the terms of this Agreement.
(h) Entire Agreement. This agreement contains the entire agreement
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between the parties concerning the employment of the Executive by the Company,
and supersedes any employment or change in control agreements between the
Executive and the Company or any of its predecessors, subsidiaries or
predecessors of subsidiaries.
(i) Headings and Captions. Headings and paragraph captions used in
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this Agreement are intended for convenience of reference only and shall not
affect the interpretation of this Agreement.
(j) Supervisory Suspension. Notwithstanding any other provision of
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this Agreement, in the event the Executive is suspended from office and/or
temporarily prohibited from participating in the conduct of the affairs of
Premier, the Company or any Subsidiary by a notice served under Section 8(e)(3)
or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. (S) 1818(e)(3) or
1818(g)(1), the Company's obligations under this Agreement shall be suspended
effective as of the service date of the notice of suspension or temporary
prohibition, unless stayed by appropriate proceedings. If the charges in the
notice are dismissed, the Company shall (i) pay the Executive all compensation
withheld while its obligations under this Agreement were suspended, and (ii)
reinstate all obligations under this Agreement that were suspended.
(k) Authorization. The Company represents and warrants that it is
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duly authorized to execute and enter into this Agreement.
(l) Reimbursement of Legal Costs. The Company (or any successor
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thereto) shall pay to the Executive all reasonable legal fees and expenses
incurred by the Executive after a Change in Control as a result of or in
connection with a bona fide dispute regarding the application of any provision
of this Agreement that arises after a Change in Control, including, without
limitation, all such fees and expenses, if any, incurred (i) in disputing any
termination under Section 6, or (ii) in seeking to enforce or obtain any right
or benefit provided by this Agreement; provided, however, that the Company (or
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any successor thereto) shall only be obligated to make payments under this
Section 11(l) for legal fees and expenses incurred by the Executive in
connection with or as a result of any such bona fide dispute regarding which the
Executive has obtained a
12
final, nonappealable decision or determination in his favor (a "Final
Determination"). Any payments pursuant to this Section 11(l) shall be made only
if a Final Determination has been rendered and shall be made within five (5)
business days after delivery of the Executive's respective written requests for
payment accompanied by such evidence of fees and expenses incurred as the
Company (or any successor thereto) reasonably may require.
IN WITNESS WHEREOF, the parties have executed and entered into this
Agreement effective as of the date set forth above.
PREMIER NATIONAL BANK
By: /s/ X. X. Xxxxxxxxxx III
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Name: X. X. Xxxxxxxxxx III
Title: Chairman & CEO
/s/Xxxxxx X. Xxxxxxxx
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Executive: Xxxxxx X. Xxxxxxxx
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Schedule 1
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