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EXHIBIT 10.5
THIS EMPLOYMENT CONTRACT
made and entered into this 1st day of September, 1996 between Patriot National
Bank ("Employer"), a national banking association chartered through the Office
of the Comptroller of the Currency; and Xxxxxxx X. Xxxxxx ("Employee")
WHEREAS, Employee has agreed to be a Executive Vice President of the
Bank;
WHEREAS, the parties wish to establish the terms and conditions of
Employee's employment,
NOW, therefore, in consideration of the promises and the mutual
covenants and agreements set forth herein, the parties hereby agree as follows:
1. RELATIONSHIP AND DUTIES
(a) Employer hereby employs Employee on the effective date hereof
(as defined in paragraph 2 below) as Executive Vice President of the Bank to
serve as a commercial lending officer and to perform such services and duties
as the Bank's President & CEO ("President") may, from time to time, designate
during the term hereof. Subject to the terms and conditions hereof, Employee
will perform such duties and exercise such authority as are customarily
performed and exercised by persons holding such office, subject to the
direction of the President.
(b) Employee accepts such employment and shall devote his full
time, attention, and best efforts to the diligent performance of his duties
herein specified and as an officer of the Bank. While employed by Employer,
the Employee will not, without the prior written consent of the President,
accept employment with any other individual, corporation, partnership,
governmental authority or other entity, or engage in any other venture for
profit which Employer or the Board may consider to be in conflict with the
Bank's best interests or to be in competition with the Bank, or which may
interfere in any way with the Employee's performance of his duties hereunder.
It is understood that Employee does have the right to participate in passive
investments including income producing real estate, not otherwise in conflict
with Bank policy.
(c) Whenever the term "Employer" is used herein, that term shall
be deemed synonymous with the terms "the Bank", "President", or "the Board",
whenever the context so requires.
(d) Regarding the relationships and duties of the parties to this
contract, the Employee shall not be required by Employer, as a part of his
duties, to perform or to participate in any activity which constitutes a
violation of any state or federal law, rule, ordinance or regulation.
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2. TERMS OF EMPLOYMENT
Employee's employment hereunder shall commence upon the effective date
of this contract. Said employment shall continue from the date of this
agreement until December 31, 1998, unless terminated earlier pursuant to the
terms hereof. Employee's employment pursuant to this agreement shall be
terminated by the first to occur of any of the following:
(a) the death of the Employee;
(b) the complete disability of the Employee. "Complete
disability" as used herein shall mean the inability of Employee, due to
illness, accident, or any other physical or mental incapacity, completely to
fulfill his obligations hereunder for an aggregate of ninety (90) days within
any period of 180 consecutive days during the term hereof;
(c) The discharge of Employee by Employer for cause. "Cause" as
used herein shall include, without limitation: dishonesty; theft; conviction of
a crime, which is either a felony or misdemeanor other than any minor traffic
violation; unethical business conduct; activity which is contrary to the Bank's
interests; gross or repeated negligence in carrying out Employee's duties; or
material violation of Employee's obligations hereunder. Should Employer deem
specific activities contrary to the Bank's interest or that negligence by
Employee in carrying out his duties or any violation of Employee's obligations
hereunder has occurred, notice of said activity, negligence or violation shall
be provided by Employer to Employee along with a reasonable period of time in
which to correct. Provided that such activity, negligence or violation is
neither dishonest nor criminal, 30 days shall be deemed to be reasonable time
in which to correct such deficiencies.
(d) Discharge for "cause" will require approval by a two-thirds
majority vote of the Board of the Bank. Termination of Employee's employment
for cause shall include termination as an employee and officer of Employer.
3. COMPENSATION
For all services which Employee may render to Employer during the term
hereof, Employer shall pay to Employee, subject to such deduction as may be
required by law, according to the schedule set out below:
(a) Base Salary. From the effective date hereof, Employee shall
receive for the term of this contract a salary based on an annual rate of
$98,038, payable in equal semi-monthly installments, subject to such deductions
as may be required by law. The Employee will receive performance reviews at
least annually at the end of each fiscal year from the President and the Board,
and the Employee's salary may be increased but not decreased at the sole
discretion of the Board.
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(b) Performance Bonuses.
(i) Annual Bonus Formulae. For the Bank's fiscal year,
the Bank shall pay a performance bonus in cash to the Employee
not later than thirty days following the completion of the
Bank's audited financial statements for the fiscal year then
ended, subject to adjustment, if any, in accordance with a
formula agreed to at the beginning of each year.
At no time will the aggregate Annual Bonus earned be greater
than 30% of the Employee's base salary for the fiscal year.
No performance bonus otherwise in effect shall be paid if
Employee is terminated for cause prior to the end of the
fiscal year.
4. OTHER BENEFITS
During the term of the Employee's employment hereunder on and after
the effective date (except as noted in this paragraph) Employer shall furnish
to Employee: (i) an automobile of his choice to have a net cost not to exceed
$25,000 which may be leased by the Bank; (ii) A term life insurance policy
providing for death benefits of two times base salary having a beneficiary
designated by the Employee; (iii) A group health, hospitalization and dental
insurance policy covering the Employee at no cost to the Employee other than
such deductible as may be applicable to all other Employees of the Employee,
and, if the Employee desires, covering the dependents and spouse of the
Employee, if any, at no cost to the Employee; and (iv) A long term disability
insurance policy, as generally defined in the insurance industry, providing for
benefits of at least 60% of Employee's basic monthly earnings not to exceed
$5,000 monthly. This long term disability policy will be as consistent as
reasonably possible with the definition of "complete disability" provided in
paragraph 2(b) above. Supplemental long term disability benefits will be
provided on an annual basis as deemed appropriate. The Employee will be allowed
to participate in all other benefits provided to the company's employees.
5. STOCK OPTIONS
(a) Employee shall be granted an option to purchase 1,732 shares
of stock of the Bank holding company during each full fiscal year of employment
during the term of this agreement at a strike price consistent with the market
on the date granted; provided that at the end of each full fiscal year, the
Bank's performance, meets or exceeds, the annual budgets as approved by the
Board. During the 1996 fiscal year, the performance standard shall be based
upon the Bank's return on assets; for each year thereafter under the term of
this agreement, the performance standard shall be based upon the Bank's return
on assets and return on equity. The options may be exercised in whole or in
part at any time during the first ten (10) years after the issue of the stock
option agreement.
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(b) If, prior to the Expiration Time of the agreement granted,
the Corporation shall subdivide its outstanding shares of common stock into a
greater number of shares, or declare and pay a dividend on its common stock
payable in additional shares of its common stock, the Exercise Price as then in
effect shall be proportionately reduced, and/or the number of shares of common
stock then subject to exercise under the Stock Option Agreement (and not
previously exercised), shall be proportionately increased as the case may be.
(c) If, prior to the Expiration Time of the agreement granted, the
Corporation shall combine its outstanding shares of common stock into a smaller
number of shares, the Exercise Price, as then in effect, shall be
proportionately increased, and the number of shares of common stock then
subject to exercise under this Stock Option Agreement (and not previously
exercised), shall be proportionately reduced.
(d) Any options that have not otherwise been accrued and granted
herein shall immediately terminate upon Employee's termination of employment.
6. EXPENSES
Upon Employee's presentment to Employer of expense reports acceptable
to Employer and which are in sufficiently detailed form to comply with
standards for deduction of business expenses established from time to time by
the Internal Revenue Service, Employer will reimburse Employee for such
expenses approved by the Employer and incurred by Employee in connection with
performance of his duties hereunder.
7. POST TERMINATION COVENANTS
Employee agrees to not furnish, use, or divulge to anyone any
confidential information of Employer acquired by him from Employer and relating
to the Employer's business activities and further agrees, for one (1) year
following such termination, Employee agrees that he will not, without the prior
written consent of Employer: (i) furnish anyone with the name of, or any list
or lists which identify, any customers or stockholders of the Employer or
utilize such list or information himself, (ii) contact directly or indirectly
any customer of Employer for the purpose of soliciting such person's business
for another bank or similar financial institution; (iii) hire for any other
employer (including himself) any employee of Employer or directly or indirectly
cause such employee to leave his or her employment to work for another; (iv)
pursue an actual or potential business opportunity of interest to and which
could be pursued by Employer which came to the attention of Employee in
connection with his employment with Employer and which Employee had not
previously offered in writing to Employer with sufficient advance notice to
allow Employer to examine and pursue or reject such opportunity. Excepted from
the requirements of subparagraph (i) in this paragraph is any information which
is or becomes publicly and available information through no fault or act of
Employee.
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It is understood and agreed by the parties hereto that the provisions
of this paragraph are independent of each other, and to the extent any
provision or portion thereof shall be determined by a court of competent
jurisdiction to be unenforceable, such determination shall not effect the
validity or enforceability of any other provision of this paragraph or the
remainder of this agreement.
8. WAIVER OF PROVISIONS
Failure by any of the parties hereto to insist, in one or more
instances, on performance by the other in strict accordance with the terms and
conditions of this agreement shall not be deemed a waiver or relinquishment of
any right granted hereunder or of the obligation of future performance of any
such term or condition or of any other term or condition of this agreement,
unless such waiver is contained in writing signed by or on behalf of all the
parties.
9. GOVERNING LAW
This agreement shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Virginia. If for any reason
any provision of this agreement shall be held by a court of competent
jurisdiction to be void or unenforceable, the same shall not affect the
remaining provisions hereof.
10. MODIFICATION AND AMENDMENT
This agreement contains the sole and entire agreement among the
parties hereto and supersedes all prior discussions and agreements among the
parties, and any such prior agreements shall, from and after the date hereof,
be null and void. This agreement shall not be modified or amended except by an
instrument in writing signed by on or behalf of all parties hereto.
11. COUNTERPARTS AND HEADINGS
This agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument. The headings set out herein are for
convenience of reference and shall not be deemed a part of this agreement.
12. INJUNCTIVE RELIEF
In the event of a breach or threatened breach by Employee of any of
the provisions of paragraph 2 or paragraph 7, and notwithstanding any other
provision in this agreement, Employer, in addition to any other available
rights or remedies, shall be entitled to such temporary restraining orders and
permanent injunctions, as are allowable and authorized by the laws of the
Commonwealth of Virginia based on the facts of the case, to restrain such
breach by Employee and/or any persons directly or indirectly acting for or with
him. Employee's obligations under paragraph 7 hereof shall remain binding and
enforceable according to its terms notwithstanding expiration or termination of
the other terms of this agreement or the termination of Employee's employment
relationship with the Bank.
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13. SUCCESSORS
This agreement shall inure to the benefit of and be binding upon the
Employer, its successors and assignees and upon the Employee, and his heirs and
personal representatives. Neither this agreement nor performance hereunder may
be assigned by Employee.
IN WITNESS WHEREOF, the parties hereto have executed this agreement
under seal on the 27th day of September, 1996, to be effective as of the date
first written above.
EMPLOYEE:
/s/ /s/
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Witness Xxxxxxx X. Xxxxxx
EMPLOYER:
PATRIOT NATIONAL BANK
national banking organization
/s/ /s/
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Witness Xxxxxxx X. Xxxxxxx
President & CEO
