EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), made as of APRIL 1, 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 XXXX X. XXXXXX, residing at 0 XXXXXX XXXXX, XXXXXXXX, 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 a Executive Vice President, Chief Financial 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 Executive
Vice President, Chief Financial 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 APRIL 1, 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
Executive Vice President, Chief Financial 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 Executive Vice President, Chief Financial 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 $136,000.00 (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
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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(c) OTHER BENEFITS. The Executive shall be entitled to receive
such additional benefits as are set forth in SCHEDULE 1 hereto on the terms and
conditions set forth in such schedule.
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.
(b) TERMINATION WITHOUT CAUSE. At any time after the Effective
Date, the Company may terminate the employment of the Executive hereunder
without cause for
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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:
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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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) two (2) years.
(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 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
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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") 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
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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), 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
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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 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
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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.
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: XXXX X. XXXXXX
0 XXXXXX XXXXX
XXXXXXXX, XX 00000
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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.
(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.
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(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 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/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
Executive Xxxx X. Xxxxxx
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SCHEDULE 1
A. Company vehicle under arrangements equivalent to other Bank Executive Vice
Presidents.
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