Exhibit 10.45
AGREEMENT
THIS AGREEMENT is entered into as of the 1st day of February, 1998, by
and between Xxxxx X. Xxxxxx ("Employee"), and Hibernia National Bank, a national
banking association ("Hibernia").
W I T N E S S E T H:
WHEREAS, Hibernia is successor in interest to ArgentBank (the "Bank"),
of which Employee is the President and Chief Executive Officer;
WHEREAS, Employee is a unique repository of information and knowledge
concerning the Bank, its customers and its operations;
WHEREAS, Hibernia desires to have the benefit of such knowledge and
experience and recognizes that such knowledge and experience would be valuable
to competitors of Hibernia to the detriment of Hibernia;
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 Employee and Employee 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,
Employee shall be employed as Regional Chairman/Southeast , or such other 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. Employee's duties shall include the overall responsibility
for the operations of Hibernia within Jefferson and Orleans Parishes, Louisiana
consistent with other Regional Chairmen and with Hibernia's organization,
structure and policies as they currently exist and as they may change over time,
and such other duties that may, from time to time, be delegated to Employee by
the Chief Executive Officer or such other officer or officers to whom Employee
may report or who may be responsible for determining the scope of Employee's
duties, as he or she determines to be necessary or appropriate to Employee's
position. The duties would include, but not necessarily be limited to, assisting
in the integration of the Bank into the operations of Hibernia, representing
Hibernia in community affairs, developing and maintaining customer
relationships, developing new business relationships and such other
responsibilities as may reasonably be associated with Employee's position in
light of his level of experience and responsibility. During the period of his
employment hereunder, Employee shall devote his business time, attention, skill
and efforts to the faithful performance of his duties hereunder. During the term
of his employment under this Agreement, Employee may not serve, or continue to
serve, on the board of directors or hold any other office or position with any
other financial institution within the Restricted Area, as defined in Section 7
below.
4. COMPENSATION.
(a) Salary. Hibernia will pay Employee $_________.00 per year to
compensate Employee for the duties and responsibilities
performed for Hibernia described in Section 3 above. During
the term of his employment, Employee'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 employees. The
foregoing salary may be increased, but not decreased, by
Hibernia in accordance with its ordinary policies and
procedures for salary increases during the term of this
Agreement.
(b) Bonus. Employee will participate in Hibernia's management
bonus program, on such terms and conditions as may be agreed
to between Employee and Hibernia.
(c) Benefits. Employee during the term of his employment shall
also be entitled to -------- receive such benefits as
Hibernia may provide for its employees pursuant to any
policy of Hibernia authorized by its Board of Directors. For
purposes of determining the eligibility of Employee to
receive benefits, and the benefits to which Employee shall
be entitled under Hibernia's benefits plans, any period of
employment of Employee with the Bank shall be deemed
equivalent to having been employed for that same period by
Hibernia, and Employee will not be denied health insurance
coverage solely as a result of a preexisting condition that
existed on the date of the merger between Hibernia and the
Bank but did not exist on the date Employee commenced his
employment with the Bank.
5. TERM. Employee's employment under this Agreement shall commence on
February 1, 1998 and shall terminate four years from that date (the "Termination
Date"), unless terminated sooner in accordance with any provision hereof.
6. TERMINATION.
(a) Death or Disability.
(i) Employment shall terminate upon Employee's death.
(ii) If Employee 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
Employee 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), Employee or his heirs, estate, executor and
administrator shall be entitled to receive, and
Hibernia shall pay to Employee or his heirs, estate,
executor or administrator unpaid salary through the
Termination Date, and any benefits to which Employee 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)
Employee 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 Employee's ability to perform his duties hereunder
or would impair the business reputation of Hibernia,
either in the market for which Employee is responsible or
otherwise, (ii) in the good faith opinion of the Board of
Directors of Hibernia or the Company, Employee 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, Employee 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 for Good Reason. Employee may terminate this
Agreement at any time for ----------------------------
"Good Reason", defined to mean, (i) a significant
diminution of duties from those assigned to Employee at
commencement of this Agreement, (ii) requiring Employee,
without his consent, to be based anywhere other than
Jefferson or Orleans Parishes, Louisiana, or (iii) the
failure of Hibernia to perform its obligations under
Section 4(a) or 4(b) hereof or any other material
obligation under this Agreement. If Employee terminates
this Agreement for Good Reason, Hibernia shall pay to
Employee the remainder of his salary through the
Termination Date at the time of termination in a lump
sum, as well as any benefits to which Employee or his
estate may then be entitled under benefits insurance
plans or their equivalent provided by Hibernia pursuant
to Section 4 hereof.
(d) Termination of Agreement Without Cause. Hibernia may
terminate this Agreement without cause at any time after
the Effective Date by paying to Employee 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 Employee or his estate may then be
entitled under benefits insurance plans or their
equivalent provided by Hibernia pursuant to Section 4
hereof.
7. Non-Competition. Except as provided in Section 6 hereof to the
contrary, if Hibernia terminates this Agreement for cause, or Employee
terminates his employment without Good Reason, the Employee shall be prohibited
from engaging in the activities described in Paragraph (i) or (ii) below for a
period of two years following the Effective Date pursuant to the Merger
Agreement. In addition, if Employee terminates his employment for Good Reason or
Hibernia terminates this Agreement without cause and, in each such case,
Hibernia has paid or continues to pay Employee any amounts due him hereunder,
then for a period equal to the lesser of (a) two years from the Effective Date,
or (b) the period during which Hibernia continues to make payments to Employee
pursuant to this Agreement, Employee shall not:
(i) become an officer, director, employee or
more than 3% shareholder in any financial
institution having an office or otherwise
doing business within Assumption, Lafourche
or Terrebonne Parishes, Louisiana (the
"Restricted Area"); or
(ii) solicit any of Hibernia's depositors or
other customers to become depositors or
customers of any other financial institution
having an office or otherwise doing business
within the Restricted Area.
Employee further acknowledges and agrees that this covenant does not work a
hardship on him, that he is able and willing to support himself in compliance
with this covenant, and that this covenant will not prevent him from engaging in
his chosen career or profession or unduly limit his ability to continue to
support himself.
8. PREVIOUS AGREEMENT(S). Employee and Hibernia agree that this
Agreement supersedes any and all employment agreements between the Bank, its
parents, subsidiaries, or their predecessors and/or assigns and Employee, and
that any and all such prior employment agreements are hereby terminated and of
no further force and effect.
9. 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.
10. INTEGRATED AGREEMENT. This Agreement, and all other documents and
instruments delivered in accordance with 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.
11. 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.
12. 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.
13. 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
Employee.
14. 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.
EMPLOYEE
------------------------------------
Xxxxxxx X. Xxxxxx
HIBERNIA NATIONAL BANK
By: ____________________________________
Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
1 The bonus payout ratio shall be the percentage of the target bonus for
Executive, which target bonus is expressed as a percentage of annual base salary
and which is established in advance of each fiscal year by Hibernia, which is
actually awarded in that year. For example, if the target bonus is 50% of base
salary, and the award is 25% of the target, then the bonus payout ratio is 25%.
For purposes of this provision, the bonus payout ratios for the three years in
question would be aggregated and divided by three, and the resulting average
would be applied to the target bonus for the Executive in the year in which the
Employment Period Bonus would be paid.
