EXHIBIT 10.38
AGREEMENT
THIS AGREEMENT is entered into as of the 31st day of December, 1999, by and
between E.R. "Bo" Xxxxxxxx. ("Executive"), and Hibernia National Bank a
national banking association ("Hibernia").
W I T N E S S E T H:
WHEREAS, Hibernia and Executive desire to continue their relationship as
employer and employee which began in 1994 under terms that differ from
those previously in effect;
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties and covenants hereinafter set forth, the
parties hereto hereby agree as follows:
1. EMPLOYMENT. Hibernia agrees to employ Executive and Executive agrees
to remain in the employ of Hibernia, upon the terms and subject to the
conditions provided herein.
2. POSITION AND TITLE. During the period of his employment hereunder,
Executive shall report directly to the Chief Executive Officer and shall
hold such title as may be mutually agreed by the parties, and shall perform
services when and as directed by Hibernia or its parent company, Hibernia
Corporation (the "Company"), as more fully described in Section 3 hereof.
3. DUTIES. Executive's duties shall include business development and such
duties as may be delegated to him by the Chief Executive Officer or the
Board of Directors. During the period of his employment hereunder,
Executive shall devote such business time, attention, skill and efforts
to the faithful performance of his duties hereunder as may be mutually
agreed by Executive and the Chief Executive Officer. During the term of his
employment under this Agreement, Executive may not serve, or continue to
serve, on the board of directors or hold any other office or position with
any other financial institution.
4. COMPENSATION.
(a) Salary. Hibernia will pay Executive $___________.00 per year to
compensate Executive for the duties and responsibilities performed
for Hibernia described in Section 3 above. During the term
of his employment, Executive's salary will be paid currently
in equal installments twice monthly, on the 15th and the last
business day of each month, or at such other times as Hibernia
may regularly pay its Executives.
(b) Bonus. Executive will not be entitled to a bonus.
(c) Benefits. Executive during the term of his employment shall also be
entitled to receive such benefits as Hibernia may provide for its
Executives pursuant to any policy of Hibernia authorized by its
Board of Directors.
5. TERM. The term of this Agreement shall be three years; provided,
however, that the term of this Agreement shall be automatically extended
for an additional year upon each anniversary of the date of this
Agreement, unless this Agreement is otherwise terminated by notice given
by Hibernia or Executive on or before any anniversary of the date of
this Agreement.
6. TERMINATION.
(a) Death or Disability.
(i) Employment shall terminate upon Executive's death.
(ii) If Executive becomes, in the good faith judgment of Hibernia's
Board of Directors, physically or mentally disabled so as to be
eligible to receive benefits pursuant to the disability insurance
policy provided to Executive pursuant to this Agreement, Hibernia
may, at its option, terminate employment upon not fewer than 15
days' written notice.
If employment is terminated pursuant to this Subsection 6(a),
Executive or his heirs, estate, executor and administrator shall
be entitled to receive, and Hibernia shall pay to Executive or
his heirs, estate, executor or administrator unpaid salary
through the Termination Date, and any benefits to which Executive
or his estate may then be entitled under benefits insurance plans
or their equivalent provided by Hibernia pursuant to Section 4
hereof.
(b) Termination for Cause. This Agreement may be immediately terminated
by Hibernia if:
(i) Executive knowingly and intentionally commits, or is otherwise
officially charged with, a felony or a crime involving moral
turpitude or any other criminal activity or unethical conduct
that, in the good faith opinion of the Board of Directors of
Hibernia, would seriously impair Executive's ability to perform
his duties hereunder or would impair the business reputation of
Hibernia, either in the market for which Executive is responsible
or otherwise,
(ii) in the good faith opinion of the Board of Directors of Hibernia
or the Company, Executive fails to substantially perform the
duties assigned to him hereunder if such failure has continued
for a period of 30 days after notice of such failure and a demand
for performance has been given by the Company, or
(iii) in the good faith opinion of the Board of Directors of Hibernia
or the Company, Executive has violated any statute, rule, or
regulation under the federal securities or banking laws or the
securities or banking laws of any state which impairs the
business of Hibernia.
(c) Termination of Agreement Without Cause. Hibernia may terminate this
Agreement without cause at any time after the Effective Date by
paying to Executive the full amount of unpaid salary to which he
would have been entitled through the Termination Date in a lump sum
and any benefits to which Executive or his estate may then be
entitled under benefits insurance plans or their equivalent provided
by Hibernia pursuant to Section 4 hereof.
7. PREVIOUS AGREEMENT(S). Executive and Hibernia agree that this Agreement
supersedes any and all employment agreements or ther agreements relating to
benefits to be paid upon a change of control or a termination of employment
between the Bank, its parents, subsidiaries, or their predecessors and/or
assigns and Executive, and that any and all such prior agreements are
hereby terminated and of no further force and effect.
8. HEADINGS. Section and other headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
9. INTEGRATED AGREEMENT. This Agreement, and all other documents and
instruments delivered in accordanc ewith the terms hereof, constitutes the
entire understanding and agreement among the parties hereto with respect to
the subject matter hereof, and there are no other agreements,
understandings, restrictions, representations or warranties among the
parties other than those set forth herein or herein provided for.
10. AMENDMENTS. This Agreement may be amended or modified at any time in
any or all respects, but only by an instrument in writing executed by the
parties hereto.
11. CHOICE OF LAW. The validity of the Agreement, the construction of its
terms, and the determination of the rights and duties of the parties hereto
shall be governed by and construed in accordance with the internal laws of
the State of Louisiana applicable to contracts made to be performed wholly
within such State.
12. ASSIGNMENT. The rights and obligations of Hibernia pursuant to this
Agreement shall be binding upon and inure to the benefit of Hibernia's
successors and assigns. This Agreement may not be assigned or transferred
by Executive.
13. SEVERABILITY. Each provision of the Agreement is intended to be
severable. In the event that any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal or
unenforceable, the same shall not affect the validity or enforceability of
any other provision of this Agreement, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provisions had never
been contained therein. Notwithstanding the foregoing, however, no
provision shall be severed if it is clearly apparent under the
circumstances that the parties would not have entered into the Agreement
without such provision.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EXECUTIVE
____________________________________
HIBERNIA NATIONAL BANK
By: ____________________________________
Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
