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Exhibit 10.4
CONTINUATION OF EMPLOYMENT AGREEMENT
THIS CONTINUATION OF EMPLOYMENT AGREEMENT (the "Agreement") is entered
into as of November 24, 1998, by and between F.N.B. CORPORATION, a Pennsylvania
corporation (the "Company"), and XXXXX XXXXXXXXX, an individual residing in
Naples, Florida ("Xxxxxxxxx").
Witnesseth that:
WHEREAS, Xxxxxxxxx has been an employee of the Company's principal
subsidiary since March 1, 1959 and was for many years its President and Chief
Executive Officer and is currently and for many years has been the Chairman of
the Board of Directors of the Company (the "Chairman") and Chief Executive
Officer of the Company,
WHEREAS, Xxxxxxxxx and the Company are parties to an Employment
Agreement dated January 1, 1990, which agreement has been amended from time to
time (collectively, the "Employment Agreement"),
WHEREAS, Xxxxxxxxx and the Company are parties to a Post-Employment
Services Agreement dated September 10, 1996 (the "Post-Employment Agreement"),
WHEREAS, Xxxxxxxxx plans to step down as Chief Executive Officer of the
Company on or prior to December 31, 2000, which is the expiration date of the
term of his employment under Section 1 (b) of the Employment Agreement,
WHEREAS, the Company does not wish to lose the benefit of Xxxxxxxxx'x
years of experience with the Company, especially in connection with oversight of
the Company's banking subsidiaries, his knowledge of the markets in which the
Company competes, and his expertise in the financial services industry,
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WHEREAS, Xxxxxxxxx and the Company desire to revoke and terminate the
Post-Employment Agreement and to reflect in this Agreement current market
practices for executive compensation and part-time service arrangements, and the
changes in the size, complexity, and geographic scope of the Company since 1996,
WHEREAS, outside experts and consultants with experience in, insight
into, and knowledge of banking industry executive compensation practices and
part-time service arrangements have advised the Company that the terms of this
Agreement are consistent with industry practices for treatment of executives and
part-time employees with the experience, knowledge, ability, and other
qualifications of Xxxxxxxxx, as well as for the size, condition, and location of
the Company;
WHEREAS, outside bank regulatory counsel has advised the Company that
this Agreement does not violate any publicly announced rule, regulation, or
policy governing executive compensation or part-time employment applicable to
the Company;
WHEREAS, Xxxxxxxxx and the Company are committed to complying with all
applicable statutes, laws, ordinances, orders, and regulations, and to operating
the Company in a safe and sound manner; and
WHEREAS, the Company and Xxxxxxxxx each desires that Xxxxxxxxx'x
services continue to be available to the Company in the capacity of Senior
Executive, Chairman, a Member of the Board of Directors of the Company (a "Board
Member"), and an internal consultant on a part-time employee basis upon the
terms and conditions herein set forth.
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NOW, THEREFORE, in consideration of the promises and covenants herein
contained, and intending to be legally bound, the parties hereto agree as
follows:
1. Effect on Other Agreements.
(a) The Employment Agreement. Except as specifically set forth
in this Agreement, the parties to this Agreement remain bound by and subject to
the terms of the Employment Agreement. Wherever the terms of this Agreement
conflict with the terms of the Employment Agreement, the terms of the Employment
Agreement shall be without effect, and the terms of this Agreement shall govern
the parties.
(b) The Post-Employment Agreement. Except with respect to its
effect on other agreements as set forth in Paragraph 1 of the Post-Employment
Agreement, the parties hereby revoke and terminate the Post-Employment
Agreement. The revocation and termination of the Post-Employment Agreement
pursuant to this Agreement in no way shall affect the Post- Employment
Agreement's effect on the October 13, 1995 Agreement, Consulting Agreement, or
Amendment No. 2 to Employment Agreement.
2. Continued Service as Chairman and Chief Executive Officer. Xxxxxxxxx
hereby agrees to continue to serve in a full-time capacity as the Company's
Chairman and Chief Executive Officer and as a Board Member of the Company for a
period which shall, consistent with Section 1 (b) of the Employment Agreement,
end not later than December 31, 2000, unless otherwise extended by the Board of
Directors of the Company (the "CEO Term"). Except as specifically provided in
this Agreement, the terms and conditions of Xxxxxxxxx'x employment during the
CEO Term, including but not limited to duties, compensation, benefits, and
termination, shall be as set forth in the Employment Agreement.
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3. Continued Service as Senior Executive and Chairman of the Board.
Xxxxxxxxx hereby agrees to serve as Senior Executive and as a Board Member of
the Company, subject to his election as a Board Member by the Shareholders of
the Company, for a period not to exceed three years after cessation of his
full-time employment with the Company during the CEO Term (the "Post-CEO Term").
If requested by the Board, Xxxxxxxxx agrees to serve as Chairman. Xxxxxxxxx
shall not be required to devote in excess of one thousand (1,000) hours per year
to his duties during the Post-CEO Term. Xxxxxxxxx'x service as Senior Executive
and as a Board Member or as Chairman during the Post-CEO Term shall be subject
to the following terms and conditions:
(a) Duties. Xxxxxxxxx shall perform such duties as Senior
Executive or as Chairman under this Paragraph as the Chief Executive Officer or
the Board may reasonably request. These duties may include, but in no way are
limited to, any or all of the following: providing advice and counsel to
management, participating in corporate strategic planning; providing advice in
connection with major corporate transactions, such as mergers and acquisitions;
presiding over all meetings of the Board and Shareholders; planning the contents
and agenda of such meetings with the assistance of management; supervising the
work of various committees of the Board (except for the Audit Committee);
serving as Chairman of the Executive Committee, recruiting, training, and
supervising the activities of other Board Members; communicating with other
participants in the financial services industry and markets to obtain
independent information, insights, and assessments of trends and developments in
the industry for the benefit and assistance of the Board in discharging its
duties; representing the Company in its participation in the affairs of industry
trade associations; supervising the Company's communications with its
shareholders; participating
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in customer relations and public relations; participating in charitable and
community organizations which the Company or its subsidiaries wish to support;
and any other duties assigned from time to time by the Chief Executive Officer
or the Board. Xxxxxxxxx shall devote his best efforts to fulfilling his roles as
Senior Executive and as Chairman under this Paragraph and shall apply
substantially the same degree of skill and diligence in such service as applied
by him during the CEO Term. However, Xxxxxxxxx shall not be required to devote
more than one thousand (1,000) hours on an annual basis to his duties under this
Paragraph.
(b) Compensation. The Company shall, on its regularly
scheduled paydays, pay Xxxxxxxxx pro-rated portions of an annual fee equal to
fifty percent (50%) of his annual salary in effect during the final year of the
CEO Term, subject to all lawfully required deductions. In addition, throughout
the Post-CEO Term, Xxxxxxxxx shall continue to participate in the Company's
bonus and stock option plans on the same terms as applicable to other members of
the Company's management under the prevailing practices of the Company. Except
as provided in Subparagraph 3(f) of this Agreement, Xxxxxxxxx shall not be paid
any other fees or compensation with respect to service as Senior Executive or
service on the Board or committees of the Board during the Post CEO Term.
(c) Benefits. To the extent that the Company makes benefits,
including but not limited to medical, dental, vision care and life insurance,
available to similarly situated individuals, the Company shall also provide
Xxxxxxxxx with such benefits during the Post- CEO Term.
(d) Non-Selection or Termination as Chairman. If the Board
does not elect Xxxxxxxxx to be Chairman, or terminates his service during the
Post-CEO Term for any
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reason other than Proper Cause (as defined either in Section 5 of the Employment
Agreement or in Subparagraph 3(e) of this Agreement), Disability (as defined
either in Section 4 of the Employment Agreement or in Paragraph 5 of this
Agreement), Death (pursuant to Paragraph 6 of this Agreement), or material
breach of this Agreement (collectively, the "Non-Payment Reasons"), the Company
shall thereafter be and remain obligated to pay to Xxxxxxxxx compensation at the
rate described in Subparagraph 3(b) of this Agreement and to provide him the
benefits described in Subparagraph 3(c) of this Agreement until the third
anniversary of the commencement of the Post-CEO Term. If the Company terminates
Xxxxxxxxx'x services as Senior Executive and as Chairman during the Post-CEO
Term for any NonPayment Reason, the Company shall be relieved of its obligations
to pay compensation and benefits, except for accrued and unpaid items.
(e) Termination. In addition to the definition of Proper Cause
for termination as set forth in Section 5 of the Employment Agreement, the
occurrence of any of the following events or circumstances shall constitute
Proper Cause for the removal of Xxxxxxxxx as Senior Executive and as Chairman,
at the election of the Board, during the Post-CEO Term:
(i) Xxxxxxxxx'x voluntary resignation as Senior Executive
or as a Board Member without approval of the Board
for reasons other than a breach of this Agreement in
any material respect by the Company which has not
been cured within thirty (30) calendar days after the
Company's receipt of a written notice of such breach
from Xxxxxxxxx;
(ii) the perpetration of defalcations by Xxxxxxxxx
involving the Company or any of its affiliates, as
established by certified public accountants employed
by the Company, or willful, reckless, or grossly
negligent conduct of Xxxxxxxxx entailing a
substantial violation of any material provision of
the laws, rules, regulations, or orders of any
governmental agency applicable to the Company or its
subsidiaries;
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(iii) the repeated and deliberate failure by Xxxxxxxxx,
after advance written notice to him, to comply with
reasonable policies or directives of the Board; or
(iv) Xxxxxxxxx'x breach of this Agreement in any other
material respect, and his failure to cure such breach
within thirty (30) calendar days after Xxxxxxxxx
receives written notice of such breach from the
Company;
provided. however, that the inability of the Company to achieve favorable
results of operations during the Post-CEO Term for reasons essentially unrelated
to the events or circumstances described in Subparagraph 3(e) of this Agreement
shall not be deemed to constitute "Proper Cause." In the event of termination
pursuant to this Subparagraph, the Company shall be relieved of its obligations
to pay compensation and benefits, except for accrued and unpaid items.
(f) Xxxxxxxxx may serve as a director of any subsidiary of
the Company and receive the usual fee paid to any other director of such
subsidiary.
4. Engagement of Xxxxxxxxx as a Consultant Following the Post-CEO Term.
The Company hereby agrees to employ Xxxxxxxxx on a part-time basis as an
internal consultant to the Company immediately following the Post-CEO Term, and
Xxxxxxxxx hereby agrees to accept such employment. Xxxxxxxxx'x term as an
internal consultant to the Company under this Paragraph (the "Consultant Term")
shall commence upon the termination of the Post-CEO Term. The Consultant Term
shall last for a minimum of one (1) year and for a maximum of four (4) years, at
the Company's sole discretion. Xxxxxxxxx'x service during the Consultant Term
shall be subject to the following terms and conditions:
(a) Duties. Xxxxxxxxx shall perform consulting services as
requested by the Company that may involve, but are not limited to, projects
relating to strategic planning,
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growth and expansion, merger and acquisition transactions, investor relations,
human resources needs assessments and performance appraisals, and other aspects
of the operations, financial affairs, and business of the Company and its
subsidiaries as may be directed by the Company. Notwithstanding any provision of
this Agreement to the contrary, Xxxxxxxxx shall not be required to perform any
duties or services that would result in a suspension or modification of his
benefits under any retirement benefits program of the Company.
(b) Compensation. The Company shall pay Xxxxxxxxx based on a
daily fee rate equal initially to the rate of compensation paid to Xxxxxxxxx at
the end of the Post-CEO Term divided by seventy (70) (the "Daily Rate"). The
Compensation Committee may modify the Daily Rate taking into account the current
market for services by consultants of comparable experience and expertise,
including other consultants utilized by the Company. The total fee paid to
Xxxxxxxxx under this Paragraph during any annual period (as measured from the
commencement date of the Consultant Term or any anniversary of that date) (an
"Annual Period") shall be the Daily Rate in effect for such period multiplied by
seventy (70) (the "Annual Amount"). The Company shall be obligated to pay
Xxxxxxxxx the Annual Amount even if the Company does not request Xxxxxxxxx to
perform services. In addition, throughout the Consultant Term, Xxxxxxxxx shall
continue to participate in the Company's bonus and stock option plans under the
prevailing practices of the Company during the Consultant Term.
(c) Payments. The Company shall pay Xxxxxxxxx at intervals
that are consistent with the Company's custom and practice for paying other
officers and employees.
(d) Other Terms and Conditions. The other terms and conditions
governing Xxxxxxxxx'x part-time employment during the Consultant Term shall be
identical to the terms and conditions as set forth in Subparagraphs 3(c), 3(e),
and 3(f) of this Agreement.
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5. Disability. Xxxxxxxxx'x service as Senior Executive and Chairman or
during the Consultant Term may be terminated at the election of the Company upon
a determination by the Board, made in the Board's sole discretion, that
Xxxxxxxxx will be unable, by reason of physical or mental incapacity, to perform
the reasonably expected duties assigned to him pursuant to this Agreement for a
period longer than six (6) consecutive months or more than nine (9) months in
any consecutive twelve (12) month period ("Disability"). In the exercise of its
discretion, the Board shall give due consideration to, among such other factors
as it deems appropriate to the best interests of the Company, the opinion of
Xxxxxxxxx'x personal physician or physicians and the opinion of any physician or
physicians selected by the Board for these purposes. Xxxxxxxxx shall submit to
examination by any physician or physicians so selected by the Board and shall
otherwise cooperate with the Board as it makes the determination contemplated
hereunder (such cooperation to include, without limitation, consenting to the
release of information by any such physician or physicians to the Board). In the
event of termination pursuant to this Subparagraph, the Company shall be
relieved of its obligations to pay compensation and benefits, except for accrued
and unpaid items, but shall be obligated, until the earlier of: (i) the fourth
anniversary of the commencement date of the Consultant Term; or (ii) Xxxxxxxxx'x
death, to pay or provide to Xxxxxxxxx the following:
(i) Subject to the above time limitations, during the
first twelve (12) months of Disability, Xxxxxxxxx
shall receive quarterly disability income benefits in
amounts equal to one hundred percent (100%) of the
base quarterly compensation then in effect under this
Agreement; and
(ii) Subject to the above time limitations, following the
first twelve (12) months of Disability, Xxxxxxxxx
shall receive quarterly disability
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income benefits in amounts equal to sixty percent
(60%) of the base quarterly compensation then in
effect under this Agreement.
The Company shall be entitled to a credit against its
obligation to pay such disability benefits for the amounts received from time to
time by Xxxxxxxxx pursuant to any disability income insurance policy maintained
by the Company, or any other employment, and no right to disability benefit
payment shall survive Xxxxxxxxx'x death.
6. Death. This Agreement shall be terminated automatically in the event
of Xxxxxxxxx'x death during the term of this Agreement. If this Agreement is
terminated pursuant to this Paragraph, the Company shall be obligated to pay to
Xxxxxxxxx'x estate any amounts owed to Xxxxxxxxx for any work provided to the
Company prior to his death, as well as a lump sum payment equivalent to twelve
(12) months of his base compensation then in effect under this Agreement.
7. Confidentiality. For purposes of this Agreement, "proprietary
information" shall mean any information relating to the business of the Company
or its subsidiaries that has not previously been publicly released by duly
authorized representatives of the Company and shall include (but shall not be
limited to) Company information encompassed in all marketing and business plans,
financial information, costs, pricing information, and all methods, concepts, or
ideas in or reasonably related to the business of the Company or its
subsidiaries and not in the public domain.Xxxxxxxxx agrees to regard and
preserve as confidential all proprietary information that has been or may be
developed or obtained by him in the course of providing consulting services to
the Company and its subsidiaries, whether he has such information in his memory
or in writing or other physical form. Xxxxxxxxx shall not, without written
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authorization from the Company to do so, use for his benefit or purposes, nor
disclose to others, either during the term of this Agreement or thereafter,
except as required by the conditions of his consultancy hereunder, any
proprietary information connected with the business or development of the
Company or its subsidiaries. This prohibition shall not apply after the
proprietary information has been voluntarily disclosed to the public,
independently developed and disclosed by others, or otherwise enters the public
domain through lawful means.
8. Non-Competition. Xxxxxxxxx agrees that during the term of this
Agreement and for a period of two years after the termination of his services
under this Agreement, he will not in any way, directly or indirectly, manage,
operate, control, accept employment or a consulting position with, or otherwise
advise or assist or be connected with, or own or have any other interest in, or
right with respect to the revenues, receipts, profits, or losses of (other than
through ownership of not more than 4.9 percent of the outstanding equity
securities of any person, firm, or corporation), any Competitive Enterprise. For
purposes of this Paragraph, "Competitive Enterprise" means any person, firm, or
corporation that directly or indirectly: (I) is engaged in commercial banking or
any other activity that is competitive with the Company or any of its present or
future subsidiaries, and (ii) conducts such banking or other activities
described in clause (i) of this Paragraph in any county in which the Company or
any of its present or future subsidiaries then operates.
Without limitation of the Company's rights and remedies under this
Agreement or as otherwise provided by law or in equity, it is understood and
agreed between the parties that the right of Xxxxxxxxx to receive and retain any
Payments otherwise due to him under this
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Agreement shall be suspended and canceled if and for so long as he shall be in
violation of the foregoing covenant not to compete. If and when Xxxxxxxxx shall
have cured such violation and shall have tendered to the Company any and all
economic benefits directly or indirectly received or receivable by him arising
therefrom, such right shall be automatically reinstated.
9. Reimbursement of Expenses. During the term of this Agreement, the
Company shall reimburse Xxxxxxxxx for all reasonable and customary documented
expenses actually incurred by Xxxxxxxxx in the discharge of his duties hereunder
and not otherwise reimbursed by any other person or entity. It is understood
that such reasonable and customary expenses shall be reimbursed on the same
basis as applies to other officers and employees of the Company under the policy
of the Company in effect at the time the expenses are incurred.
10. Assignment; Successors. Except as provided in Paragraph 6 of this
Agreement, the benefits of this Agreement are and shall be personal to
Xxxxxxxxx, and shall not inure to the benefit of Xxxxxxxxx'x heirs, personal
representatives, or assigns. The duties of Xxxxxxxxx hereunder shall be personal
and not assignable or delegable by him in any manner whatsoever. This Agreement
shall be binding upon and shall inure to the benefit of the Company, its
successors, and its assigns.
11. Injunctive Relief. It is understood and agreed by and between the
parties hereto that the services to be rendered by Xxxxxxxxx hereunder are of a
special, unique, extraordinary, and intellectual character, which gives them a
peculiar value, the loss of which may not be reasonably or adequately
compensated in damages, and additionally that a breach by Xxxxxxxxx of the
covenants set forth in Paragraphs 7 and 8 of this Agreement will cause
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the Company great and irreparable injury and damage. Xxxxxxxxx hereby expressly
agrees that the Company shall be entitled to the remedies of injunction,
specific performance, and other equitable relief to prevent any breach of
Paragraphs 7 and 8 of this Agreement by Xxxxxxxxx. This provision shall not,
however, be construed as a waiver of any of the remedies that the Company may
have for damages or otherwise.
12. Arbitration. Any dispute or controversy as to the validity
(including but not limited to issues related to actual or potential conflicts
between any provision of this Agreement and any statute, law ordinance, order,
or regulation), interpretation, construction, application, or enforcement of, or
otherwise arising under or in connection with, this Agreement shall be submitted
at the request of either party hereto for resolution and settlement through
arbitration in Pittsburgh, Pennsylvania in accordance with the rules then
prevailing of the American Arbitration Association. Any award rendered therein
shall be final and binding on each of the parties hereto and their heirs,
executors, administrators, successors, and assigns, and judgment may be entered
thereon in any court having jurisdiction. The foregoing provisions of this
Paragraph shall not be deemed to limit the rights and remedies reserved to the
Company under and pursuant to Paragraph 11 of this Agreement.
13. Governing Law. This Agreement shall be deemed to be a contract
under the laws of the Commonwealth of Pennsylvania and shall be for all purposes
construed and enforced in accordance with the laws of said Commonwealth. Nothing
contained in this Agreement shall be interpreted, construed, or applied to
require the commission of any act contrary to law. Whenever there is any
conflict between any provision of this Agreement and any statute, law,
ordinance, order, or regulation, the latter shall prevail; but, in such event,
any such provision
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of this Agreement shall be restated, curtailed, and limited only to the extent
necessary to bring it within applicable legal requirements, and the remainder of
this Agreement shall maintain its full force and effect. If it is not possible
to restate, curtail, or limit the provision in a valid or legal manner, then
that invalid or illegal portion shall be deemed not to constitute a part of the
Agreement and the remaining provisions shall maintain their full force and
effect.
14. Waiver. The inaction in light of or waiver by either party to this
Agreement of a breach of any of the provisions of this Agreement shall not
constitute a waiver of any subsequent breach.
15. Entire Agreement: Amendment. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter contained herein
and supersedes all prior agreements, arrangements, and understandings relating
to the subject matter and may only be amended by a written agreement signed by
both parties hereto or their duly authorized representatives. Nothing contained
in this Agreement shall be deemed to limit, impair, or affect any
post-employment retirement benefits provided for under the Employment Agreement
or any retirement plan of the Company or its subsidiaries in which Xxxxxxxxx is
a participant or beneficiary.
16. Counterparts Clause. This Agreement shall be executed in two
counterparts, each of which shall be valid and enforceable.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written. ATTEST: F.N.B. CORPORATION
/s/ Xxxxxxx X. Xxxxxxxx By:/s/ Xxxxx X. Xxxxxx Xx.
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Asst. Secretary Chairman of the Compensation
Committee of the Board of Directors
WITNESS:
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
