EXHIBIT 10-7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), made as of September
7, 1999 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 Xxx X. Xxxx, residing at 0 Xxxxx Xxxxx, Xxxxxxx, XX
00000 (the "Executive").
W I T N E S S E T H:
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 Chief Administrative 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
for in this Agreement, the Company agrees to employ the Executive, and the
Executive agrees to accept employment and to serve the Company, as Chief
Administrative Officer, all upon the terms and conditions hereinafter set forth.
2. TERM.
(a) EFFECTIVE DATE. This Agreement and the employment of the
Executive under this Agreement shall become effective as of September 7, 1999
(the "Effective Date").
(b) DURATION OF AGREEMENT. This Agreement shall terminate on
the 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
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 twenty-four (24) 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 Chief
Administrative 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.
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
responsibilities of Chief Administrative Officer 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
Company under this Agreement, the Company shall compensate the Executive as
follows:
(a) SALARY. The Company shall pay the Executive for services
an annual salary of $ 200,000 (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 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, life and accident insurance and
similar benefits as the Company may extend from time to time to its employees.
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5. REIMBURSEMENT OF BUSINESS EXPENSES. The Company shall promptly
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.
(a) TERMINATION FOR CAUSE. The Company may terminate the
employment 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 have fully accrued and
vested but not been paid as of the effective date of such termination.
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(b) TERMINATION WITHOUT CAUSE. At any time after the
Effective Date, 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 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 TERMINATION FOR GOOD REASON. In the event of a Termination Without Cause or a
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 (10)
business days of the effective date of such Termination
Without Cause or Termination for Good Reason, as the case may
be.
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(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) three
(3).
(e) TERMINATION BY THE EXECUTIVE WITHOUT GOOD REASON. The
Executive 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 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 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 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.
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(h) CHANGE IN CONTROL. As used in this Agreement, "Change in
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.
(i) CONTINUED BENEFITS. After any Termination Without Cause
pursuant 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
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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, a
twenty-four (24) 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
provision of this Agreement, in the event that any payment or benefit received
or to be received by 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")
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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
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
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.
(a) NONCOMPETE AGREEMENT. In consideration of the Company's
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 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),
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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.
(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 carefully read and considered all of the terms of this Agreement,
including particularly 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
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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 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.
(a) PERSONAL SERVICES AGREEMENT. This Agreement is a personal
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 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 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.
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11. MISCELLANEOUS.
(a) NOTICES. Any and all notices required or permitted to
be given 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: 0 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
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 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, 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 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 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 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.
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(f) COUNTERPARTS. This Agreement may be executed in any
number of counterparts, which taken together shall be deemed to constitute
one original.
(g) NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in this
Agreement 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 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 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 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. Section
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 duly authorized to execute and enter into this Agreement.
(l) REIMBURSEMENT OF LEGAL COSTS. The Company (or any
successor 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 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 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
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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.
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[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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
------------------------
Name: X. X. Xxxxxxxxxx III
Title: Chairman
/s/ Xxx X. Xxxx
----------------------------------
Executive: Xxx X. Lucy
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SCHEDULE 1
