Exhibit 10(GG)
CONSULTING AND NONCOMPETITION AGREEMENT
THIS CONSULTING AND NONCOMPETITION AGREEMENT (the "Agreement") is executed by
and between FNB Corporation, a Virginia corporation and bank holding
Corporation headquartered in Christiansburg, Virginia (the "Corporation"), and
Xxxxxx X. Xxxxxx, who resides at 000 Xxxxx Xxxx, Xxxxxxxxxxxxxx, Xxxxxxxx
00000 (the "Consultant") and is to be effective as hereinafter set forth. The
parties agree to the following:
WITNESSETH:
WHEREAS, the Consultant has served as a full-time Executive Officer of FNB
Corporation, most recently holding the position of Executive Vice-President of
FNB Corporation; and
WHEREAS, the Corporation wishes to hire the Consultant as an independent
contractor to provide the consulting services hereinafter set forth and to
perform other special projects for the benefit of the Corporation, all on an
as-needed basis, starting on the day following his retirement from FNB
Corporation; and
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
promises set forth in this Agreement, and other good and valuable
consideration, the Consultant and Corporation agree as follows:
1. Engagement and Retention. The Corporation hereby engages and retains
the services of the Consultant as an independent contractor to provide
consulting assistance on the duties outlined in this Agreement. The
Consultant accepts his engagement and retention on these terms.
2. Term. The term of this Agreement shall begin the day following
Consultants retirement from FNB Corporation and shall continue for a
period of five (5) years thereafter unless sooner terminated under the
provisions of Section 13 hereof.
3. Duties of the Consultant. The Consultant shall, upon the request of the
Corporation's Chief Executive Officer or his designee, perform the
following duties:
(a) participate in any due diligence analysis required in connection
with a proposed merger, acquisition, branch purchase or sale, or
similar corporate transaction involving the Corporation;
(b) counsel the Corporation on strategic planning matters;
(c) assist the Corporation in promoting the stock of the Corporation
with market makers, institutional investors, and other interested
parties;
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(d) provide any other aid for which the Consultant may be reasonably
expected to have the requisite knowledge and experience to assist
the Corporation; and
(e) help develop and retain business and promote the Corporation and
its affiliates; and
(f) perform such other assignments and projects as may, from time to
time, be assigned to him by the Chief Executive Officer or his
designee.
(g) The parties agree that services to be rendered hereunder are to be
as needed, and project-oriented, and provided on a schedule that is
mutually agreeable. As a general rule, requests for services shall
not involve extended periods of time. The Corporation shall not
make unreasonable demands upon the Consultant's time and the
Consultant shall not unreasonably limit his availability to perform
the services requested by the Corporation.
In the event services are requested which would involve a long-term
or extended basis, the Consultant will be cooperative but shall
provide such consulting services only on such terms as the parties
may agree upon at the time before services are provided, which
shall include the Corporation paying additional compensation for
such extended services.
4. Compensation. For the Corporation's access to the Consultant's time,
talent, and services the Corporation shall pay the Consultant
compensation as follows:
The Corporation shall pay the Consultant an annual retainer of Six Thousand
Dollars ($6, 000). The retainer shall accrue and be payable monthly in equal
installments with the first installment being due and payable on the last day
of the month immediately following his retirement and on the last day of each
month thereafter for a period of five (5) years unless the contract is
otherwise terminated as set forth in Paragraph 13, hereof. The First monthly
installment of Five Hundred Dollars shall be due and payable on the 30th day
of April, 2007 and a like sum on the last day of each month thereafter for a
period ending on March 3l, 2012.
Should a Change in control occur prior to Consultants retirement from FNB
Corporation then the Consultant shall be entitled to retain and exercise all
benefits set forth in a certain Change of Control agreement heretofore entered
into between FNB Corporation and Xxxxxx X Xxxxxx dated April 1, 1999. The
compensation provided for therein shall be substituted for the compensation to
which the Consultant would otherwise be entitled to in year one of this
agreement.
(a) For each year the Agreement is in effect, the Corporation shall
issue an IRS Form 1099 to the Consultant for all compensation paid
to him under this Agreement. The Consultant shall be solely
responsible for the payment of any and all taxes, which may be due
on such sums.
(b) For the Consultant's agreement to refrain from assisting any
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competitor of the Corporation as set forth in Paragraph 10 hereof
the Corporation shall pay the Consultant a retainer of Eighteen
Thousand ($18,000) a year. The forgoing sum shall be payable
monthly in equal monthly installments with the first installment of
One Thousand Five Hundred Dollars ($1500.00) being due and payable
on the 30th day of April, 2007 and a like such sum on the last day
of the month thereafter for a period of 5 years unless otherwise
terminated as set forth in Paragraph 13, hereof.
(c) It is expressly understood and agreed between the parties hereto
that should the consultant's death occur during the term of this
agreement then the consultant's estate shall be entitled to receive
payment for the entire month in which the death occurs but all
other benefits shall cease and any and all obligations of FNB
Corporation and/or its subsidiaries under this agreement shall
terminate.
Should a Change in control occur prior to Consultants retirement
from FNB Corporation then the Consultant shall be entitled to
retain and exercise all benefits set forth in a certain Change of
control agreement heretofore entered into between FNB Corporation
and Xxxxxx X. Xxxxxx dated April 1, 1999. The compensation
provided for therein shall be substituted for the compensation to
which the Consultant would otherwise be entitled to in year one of
this agreement.
5. Relationship of the Parties. Nothing contained in this Agreement shall
be construed to constitute the Consultant as an employee of the
Corporation or any of its subsidiaries. Furthermore, neither party shall
have the authority to bind each other in any respect beyond the express
provisions of this Agreement. The Consultant shall retain the exclusive
authority to manage the manner and means of his performance hereunder.
During any period when the Corporation has not requested the Consultant
to perform his duties under this Agreement, he shall be free to render
his services, in such manner and to such persons, firms and corporation
as he deems advisable, subject to the confidentiality and Noncompetition
provisions hereof.
6. Corporation Property. Except as required to perform his duties under
this Agreement or as otherwise required by law, Consultant understands
and agrees that he will not copy, duplicate, use, access, or disseminate
to third parties any Corporation property. Consultant also agrees to
maintain and safeguard all Corporation property in his possession and to
return to the Corporation all Corporation property, including copies of
the same, in his possession, upon request by the Corporation. The term
"property" herein includes, but is not limited to, documents, reports,
files, memoranda and records, door and file keys, computer access codes,
software, and all physical and personal property, whether of the
Corporation or a customer of the Corporation, which Consultant has in his
possession, or received, or helped to prepare in connection with his
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previous employment with the Corporation or the provision of services
under this Agreement.
7. Safeguarding Confidential Information. The Corporation may provide
access to the Consultant to confidential and proprietary information
(hereinafter "confidential information") in order that he may carry out
his duties hereunder. The Consultant may also have had access to
confidential information as a result of his previous employment with the
Corporation. The Consultant understands and agrees that the following
obligations apply to any confidential information of the Corporation
which is in possession of the Consultant:
(a) that any confidential information is the exclusive property of the
Corporation and the Consultant acknowledges that he has no
ownership interest or right of any kind to said information;
(b) except as otherwise required by law, Consultant agrees that he will
not, either directly or indirectly, use, access, disclose, or
divulge to any unauthorized party (as defined below), for his own
benefit or to the detriment of the Corporation, any confidential
information; and
(c) if Consultant believes that he is required by law or otherwise to
reveal any confidential or proprietary information of the
Corporation, he or his attorney will, except as otherwise
prohibited by law, promptly contact the Corporation's CEO, at
(000) 000-0000, prior to disclosing such information in order that
the Corporation can take appropriate steps to safeguard the
disclosure of such confidential and proprietary information.
(d) For the purposes of this Section, the term confidential information
includes, without limitation, the identity of or other facts
relating to the Corporation, its customers and accounts, its
marketing strategies, financial data, trade secrets, or any other
information acquired by the Consultant as a result of his previous
employment with the Corporation or under the terms of this
Agreement, such that if such information were disclosed such
disclosure could act to the prejudice of the Corporation. The term
confidential information does not include information that has
become generally available to the public by the act of one who has
the right to disclose such information without violating any right
of the Corporation. The term "unauthorized party" means any firm,
entity, or person (whether outsiders or employees of the
Corporation) who is not specifically authorized by the Corporation
to receive such confidential/proprietary information.
(e) Nothing in this Section or Agreement should be construed, either
expressly or by implication, as limiting the maximum protections
which may be available to the Corporation under appropriate state
and federal common law or statute concerning the obligations and
duties of the Consultant to protect the Corporation's property
and/or confidential and proprietary information, including, but not
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limited to, under the Virginia Uniform Trade Secrets Acts.
8. Non-disparagement. Consultant agrees not to disparage the Corporation,
its subsidiaries, officers, directors, employees, and representatives,
including, but not limited to, comments about any of their products,
services, business, or employment practices. The Corporation agrees that
its directors and executive officers shall not disparage the Consultant;
provided, however, nothing in this Section is intended to prohibit the
Consultant or the Corporation from exercising those rights either may
have to speak of or concerning each other under applicable state and
federal law.
9. Cooperation in Proceedings. Consultant agrees to cooperate with the
Corporation by being available, in person if necessary, when requested by
the Corporation, including, but not limited to, for preparation and
attendance and testifying, for including, but not limited to,
conferences, depositions, trial/arbitration, or administrative law
hearings in which the Consultant is or may be a witness. The Corporation
shall reimburse the Consultant for all out of pocket expenses he may
incur in connection with providing such services.
10. Unfair Competition. Consultant understands and agrees:
(a) that during the term of this Agreement he will not, on his own
behalf or in the service of or on behalf of others - including, but
not limited to, as a consultant, independent contractor, owner,
partner, joint venturer, or employee - act in any manner which is
detrimental to be best interests of the Corporation; provided,
however, nothing in this Section is intended to prohibit the
Consultant from exercising those rights the Consultant may have
under applicable state and federal law;
(b) that for a period of two (2) years following the termination of
this Agreement, however caused, he will not, on his own behalf or
in the service of or on behalf of others - including, but not
limited to, as a consultant, independent contractor, owner,
partner, joint venturer, or employee - solicit, contact, attempt to
divert, or appropriate any "customer or account" of the Corporation
for the purpose of providing the same or similar services as
provided by the Corporation. A "customer or account" is defined as
any individual or entity who the Corporation was providing services
for at the time of the termination of this Agreement and for the
two (2) year period prior to that date;
(c) that for a period of two (2) years following the termination of
this Agreement, however caused, he will not, on his own behalf or
in the service of or on behalf of others - including, but not
limited to, as a consultant, independent contractor, owner,
partner, joint venturer, or employee - and within 50 miles of any
location where the Corporation has an office, work for or provide
services to any competitor of the Corporation in the same or
similar capacity as the Consultant worked for the Corporation; and
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(d) that for a period of two (2) years following the termination of
this Agreement, however caused, he will not, on his own behalf or
in the service of or on behalf of others - including, but not
limited to, as a consultant, independent contractor, owner,
partner, joint venturer, or employee - solicit, recruit, entice, or
persuade any employee of the Corporation to leave the employment of
the Corporation.
(e) Consultant hereby acknowledges and agrees that the covenants
contained above are supported by independent valuable
consideration, contain reasonable limitations as to time and scope
of activity prohibited, and do not impose a greater restraint than
is necessary to protect the good will or other legitimate business
interest of the Corporation.
11. Confidentiality. The parties understand and agree that this Agreement is
confidential as set forth herein:
(a) Unless required by law or ordered to do so by a court or agency of
competent jurisdiction, Consultant shall not, without the written
consent of the Corporation's CEO or Chairman, communicate, display,
or otherwise reveal the existence or the contents of this Agreement
except to his spouse, attorney, the Internal Revenue Service, as
necessary, and tax or financial advisors and auditors, as
necessary. Prior to any such disclosure, the Consultant will
disclose the confidential nature of the Agreement and will seek
assurance from the recipient that he/she will not divulge the
existence or contents of this Agreement. Consultant further agrees
that, if he believes that he is required by law or otherwise to
reveal any information concerning the existence or particulars of
this Agreement, he or his attorney will, except as otherwise
prohibited by law, promptly contact the Corporation's CEO, at
(000) 000-0000, prior to disclosing any information concerning this
Agreement in order that the Corporation may take appropriate steps
to maintain the confidential nature of this Agreement.
(b) The Corporation may divulge the existence or contents of this
Agreement as is required or allowed by law or as the Corporation,
in its sole discretion, deems necessary for legitimate business
purposes.
12. Breach/Remedies. Consultant acknowledges and agrees that the breach of
this Agreement, or any portion thereof, may result in irreparable harm to
the Corporation, the monetary value of which could be difficult to
establish. Consultant therefore agrees and consents that the Corporation
shall be entitled to injunctive relief or such other equitable relief as
is necessary to prevent a breach by Consultant of any of the covenants or
provisions contained in this Agreement.
In the event of a breach by the Consultant of the covenants contained in
Sections 7 and 10 above, the Consultant consents and agrees that the
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period of any injunction will correspond to the time restrictions set
forth in Section 10 above and that the restriction period will start to
commence from the date of entry of an order granting such injunction by a
court of competent jurisdiction.
Nothing contained in this Section shall be construed as prohibiting
either party from pursuing any legal remedies available to each for such
breach of this Agreement, including the recovery of damages from the
defaulting party. In addition to all other remedies, the parties agree
that in the event one party is found to be in breach of this Agreement,
then the non-defaulting party shall be entitled to a monetary award
against the breaching party in an amount equal to any and all legal
expenses incurred, including reasonable attorney's fees.
13. Termination. This Agreement may only be terminated by the Corporation if
the following conditions are found to exist:
(a) immediately, if the Consultant is found guilty of a crime involving
moral turpitude;
(b) immediately, if the Consultant is determined by a bank regulator to
be either temporarily or permanently disqualified from working in
the business of banking;
(c) immediately, if the Consultant dies; or
(d) if the Consultant persists in a knowing and willful breach of this
Agreement after first receiving written notice from the Corporation
describing the exact grounds upon which the Corporation believes a
breach has occurred, and therein providing the Consultant 30 days
within which to cure the breach. If the breach is not cured within
the 30 day period, the Agreement shall terminate on the 31st day
after notice is provided.
Any termination of this Agreement will not effect Sections 6, 7, 8, 9,
10, and 11 above, which the parties agree will survive the termination of
this Agreement irrespective of the existence of any claim or cause of
action by the Consultant against the Corporation, whether predicated on
this Agreement or otherwise.
14. Assignment or Delegation of Duties. The Consultant may not assign his
interest or delegate his duties hereunder without the express written
consent of the Corporation.
15. Stockholder Rights. The Consultant is currently a shareholder in the
common stock of the Corporation. Nothing in this Agreement is intended,
nor shall it be construed to affect the Consultant's rights as a
shareholder of the common stock of the Corporation, or to restrict the
Consultant's right to acquire the rights to stock in any other
Corporation that provides financial services, even if this other
Corporation competes with the Corporation.
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16. Miscellaneous.
(a) This Agreement shall bind the Corporation and the Consultant, and
their respective successors and assigns.
(b) This Agreement contains the entire agreement of the parties
concerning the subject matter described herein and may not be
modified except in writing signed by the party against whom
enforcement of any waiver, change, extension, modification, or
discharge is sought.
(c) The waiver by either party of a breach or a violation of any
provision of this Agreement shall not operate as or be construed as
a waiver of any subsequent breach hereof.
(d) Any notice required or permitted to be given hereunder will be
sufficient if furnished in writing, postage prepaid, to the
following addresses:
To FNB Corporation:
President and CEO
FNB Corporation
XX Xxx 000
Xxxxxxxxxxxxxx, XX 00000-0000
To Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
000 Xxxxx Xxxx
Xxxxxxxxxxxxxx, Xx. 00000
(e) The parties agree that this Agreement shall be governed by and
interpreted in accordance with the laws of the Commonwealth of
Virginia notwithstanding its choice of laws provisions. The
parties consent to the personal jurisdiction of the federal and/or
state courts serving the Commonwealth of Virginia and waive any
defenses of forum non-conveniens. The parties agree that any and
all initial judicial actions instituted under this Agreement shall
only be brought in the United States District Court for the Western
District of Virginia, Roanoke Division or the appropriate state
court in the Circuit Court of Xxxxxxxxxx County, Virginia
regardless of the place of residence of the Consultant at the time
of such action.
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(f) Each section and sub-section of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law,
but if any such section or sub-section of this Agreement shall be
adjudged to be invalid under applicable law, the remainder of the
Agreement is severable and shall continue in full force and effect.
Should a court of competent jurisdiction declare any of the
provisions of Section 10 invalid or unenforceable, the parties
acknowledge and agree that the court may revise or reconstruct such
invalid or unenforceable provisions to better effectuate the
parties' intent to reasonably restrict the activity of the
Consultant to the greatest extent afforded by law and needed to
protect the business interests of the Corporation.
(g) The language used in this Agreement is not to be construed in favor
or against any party solely because such party or their counsel may
have drafted the Agreement. Consultant warrants and represents
that he is under no contractual, judicial, or other restraint,
which impairs his right or legal ability to enter into this
Agreement and to carry out his duties and responsibilities
hereunder.
(h) This agreement shall survive any Change in Control which might
occur during the term of this agreement and all rights and benefits
as well as all duties and obligations hereunder shall remain in
full force and effect and fully binding upon all successors, heirs
or assigns.
(i) Agreement may be executed in one or more counterparts, and each
counterpart shall, for all purposes, be deemed to be an original,
and all such counterparts shall together constitute one and the
same instrument.
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WITNESS the following signatures:
/s/Xxxxxx X. Xxxxxx
Xxxxxx X Xxxxxx
March 30, 2007
Date
Witness:
/s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
March 30, 2007
Date
FNB Corporation, by:
/s/Xxxxxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxx, Xx.
Chief Executive Officer
March 30, 2007
Date
Witness:
/s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
March 30, 2007
Date
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