EXHIBIT 10(a)(7)
EMPLOYMENT AGREEMENT
This Employment Agreement dated as of January 1, 2004 is by and between
Patriot National Bank, a national banking association ("Patriot") and
Xxxx Xxxxx (the "Executive").
RECITALS
Patriot desires to employ the Executive and to have the benefit of his
skills and services, and the Executive desires to be employed by Patriot
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, terms,
covenants and conditions set forth herein, and the performance of each,
the parties, intending legally to be bound, hereby agree as follows:
AGREEMENTS
Section 1. Definitions. For purposes of this Agreement, the following
terms have the meanings set forth below:
"Board" means the Board of Directors of Patriot as same is constituted
from time to time.
"Business" means the business operations of the Pinnacle Financial
Division of Patriot National Bank, which consists of the residential
mortgage brokerage origination business as it exists on the date hereof.
"Cause" means (a) the commission by the Executive of any act, on or
after the date of this Agreement, constituting, as to any cash funds or
other receipts of Patriot, or any material property of Patriot or any
other Person, (i) theft, (ii) embezzlement, (iii) fraud, (iv) gross
misconduct, (v) dishonesty or (vi) or misappropriation of material
property under applicable law; (b) the conviction of the Executive of
(i) a crime resulting in material injury to the business or property of
Patriot or (ii) a felony; (c) the material breach by the Executive of
this Agreement, including but not limited to the failure by the
Executive to follow all reasonable and lawful directions of the Board as
to any material matter, or the taking of any action by the Executive
that would be reasonably likely to cause material injury to Patriot or
that would be in conflict with any material interest to Patriot within a
reasonable period of time following Executive's receipt of written
notice thereof by Patriot, which notice is sufficiently specific so as
to permit Executive reasonably to cure such misconduct; or (d) the
misuse or unlawful use of drugs, alcohol or other controlled substances
in contravention of written policies of Patriot that are applicable to
all employees of Patriot.
"Confidential Information" means information that was or is used,
developed or obtained by Patriot in connection with its business,
including (a) products or services, (b) fees, costs and pricing
structures, (c) analyses, (d) computer software, including operating
systems, applications and program listings, (e) flow charts, manuals and
documentation, (f) data bases, (g) accounting and business methods, (h)
inventions, devices, new developments, methods and processes, whether
patentable or unpatentable and whether or not reduced to practice, (i)
other copyrightable works, (j) all technology and trade secrets, and (k)
all similar and related information in whatever form or medium.
Notwithstanding the foregoing, this Agreement imposes no obligation upon
the Executive with respect to Confidential Information which (a) was
known to the Executive before receipt from Patriot, (b) is or becomes
publicly available through no fault of the Executive, (c) is disclosed
to the Executive by a third party without a duty of confidentiality on
the part of the third party to Patriot, (d) is subsequently
independently developed by the Executive without a breach of this
Agreement, or (e) is required to be disclosed by the Executive in a
judicial or administrative proceeding, provided that the Executive gives
Patriot reasonable advance notice of such required disclosure so that
Executive may contest the disclosure or seek a protective order.
"Effective Date" means the date of this Agreement.
"Employment Period" has the meaning set forth in Section 5 of this
Agreement.
"Executive" means Xxxx Xxxxx.
"Permanent Disability" shall have occurred if as a result of physical or
mental incapacity, the Employee shall have been incapable of performing
Employee's duties hereunder for a period in excess of 120 consecutive
days in any 6 month period, or an aggregate of 240 days in any 12 month
period.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a trust, a joint venture, an
unincorporated organization and a governmental entity or any department,
agency or political subdivision thereof.
"Pinnacle" means the Pinnacle Financial Division of Patriot.
"Reimbursable Expenses" has the meaning set forth in Section 4.4 of this
Agreement.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association or other business
entity of which (a) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or a combination thereof, or (b) if a
partnership, limited liability company, association or other business
entity, a majority of the partnership or other similar ownership
interests thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more Subsidiaries of the Person or
a combination thereof. For purposes of this Agreement, a Person or
Persons will be deemed to have a majority ownership interest in a
partnership, limited liability company, association or other business
entity if such Person or Persons are allocated a majority of
partnership, limited liability company, association or other business
entity gains or losses or control the managing director or member or
general partner of such partnership, limited liability company,
association or other business entity.
"Termination Date" shall mean December 31, 2004.
Section 2. Employment. Patriot hereby employs the Executive, and the
Executive hereby accepts employment with Patriot, upon the terms and
conditions set forth in this Agreement, for the Employment Period
provided in Section 5.
Section 3. Position and Duties.
3.1 Position. The Executive shall hold the position of Executive Vice
President of Patriot National Bank. During the Employment Period, the
Executive will perform such reasonable executive and management duties
as may, from time to time, be determined and assigned to him by the
Chairman, Chief Executive Officer, President and/or the Management
Committee of Patriot National Bank, which duties shall be similar to the
services the Executive rendered to Pinnacle in the past and shall relate
primarily to the residential real estate mortgage origination business
of Patriot and its affiliates. Patriot shall not require the Executive
to relocate to any office of Patriot outside of Nassau County, New York.
3.2 Performance of Duties; Other Activities. The Executive shall devote
his best efforts, attention and skills toward performing his duties on
behalf of Patriot, and his full business and professional time to fully
and faithfully perform such duties and responsibilities to the best of
his abilities in a diligent, trustworthy, businesslike and efficient
manner. The Executive shall do such traveling as may reasonably be
required in connection with the performance of his duties and
responsibilities hereunder, provided that the Executive will not be
assigned to regular duties such as would require him to relocate his
permanent residence.
3.3 Reporting. The Executive will report to the Chairman, Chief
Executive Officer, President and/or the Management Committee of Patriot
National Bank.
Section 4. Compensation and Benefits.
4.1 Compensation. The compensation payable to the Executive by Patriot
during the Employment Period is set forth on Schedule A hereto.
4.2 Executive Stock Purchases and Stock Options. The Executive may be
granted options and opportunities to purchase Patriot Common Stock as
may be awarded in the sole discretion of Patriot's Board of Directors
from time to time.
4.3 Benefits. In addition to the aforesaid compensation, the Executive
shall be entitled to be included under the same rules or restrictions in
any employee welfare and retirement plan or program of Patriot generally
available to its employees and or officers, including, without
limitation, plans for hospital services, medical services benefits, sick
pay, dental and other health plans, as well as the following benefits
during the Employment Period:
(a) four weeks of paid vacation per year during the Employment Period;
(b) five personal/sick days per year;
(c) participation in the 401K Plan of Patriot consistent with the
participation afforded other similarly positioned Patriot executives.
4.4 Expenses. Patriot shall reimburse the Executive for any and all
reasonable expenses incurred by him in the course of performing his
duties under this Agreement which are consistent with Patriot's policies
in effect from time to time with including business travel,
entertainment, mileage expenses and other business expenses
("Reimbursable Expenses"), subject to Patriot's requirements with
respect to reporting and documentation of expenses.
Section 5. Employment Period and Termination.
5.1 Employment Period. The Executive's employment hereunder shall
commence on the Effective Date, and, unless renewed or modified by
written agreement between Patriot and the Executive, the Employment
Period will terminate on the "Termination Date"; provided, however, that
(a) the Employment Period shall terminate prior to such date upon the
Executive's death or Permanent Disability, and (b) the Employment Period
may be terminated by Patriot at any time prior to such date, if such
termination shall be for Cause. The Executive and Patriot agree to begin
negotiations to renew this employment agreement by September 15, 2004
and to use their best efforts to complete negotiations by October 15,
2004 provided, however, that neither the Executive nor Patriot shall
have any legal obligation to renew this employment agreement.
5.2 Unjustified Termination. Except as otherwise provided in Section 5.3
below, if the Employment Period shall be terminated by Patriot prior to
the Termination Date for any reason other than (a) for Cause, or (b) as
a result of the death or Permanent Disability of the Executive
(collectively, an "Unjustified Termination"), the Executive shall, so
long as the Executive has not breached and does not breach the
provisions of Sections 6, 7 or 8 of this Agreement, be entitled to
receive during the unexpired portion of the Employment Period (i)
continuation of his compensation, (ii) reimbursement of all Reimbursable
Expenses incurred by the Executive prior to the termination of the
Employment Period, and (iii) continuation of all medical benefits.
5.3 Justified Termination. If the Employment Period shall be terminated
by Patriot prior to the Termination Date (a) for Cause, (b) as a result
of the Executive's resignation, or (c) as a result of the death or
permanent disability of the Executive (collectively, a "Justified
Termination"), the Executive shall be entitled to receive his
compensation through the date of termination and reimbursement of all
Reimbursable Expenses incurred by the Executive prior to the termination
of the Employment Period. A termination for Cause shall become effective
on the date designated by Patriot.
5.4 Benefits. Except as otherwise required by law, all of the
Executive's rights to fringe benefits under this Agreement, if any,
accruing after the termination of the Employment Period as a result of a
Justified Termination will cease upon such Justified Termination.
Section 6. Non-Competition Agreement.
(a) The Executive covenants and agrees that during the Employment
Period, and for a period of 1 year following the Termination Date (the
"Restricted Period") for any reason (excluding an Unjustified
Termination by Patriot) of such employment, he will not, without the
prior written consent of Patriot, on his own behalf or in the service or
on behalf of others anywhere in Westchester, Nassau or Suffolk counties
in the State of New York or in the State of Connecticut as an owner,
manager, stockholder (except as a holder of no more than 1% of the
issued and outstanding stock of a publicly traded company) consultant,
director, officer, principal partner, agent or employee of any business
entity, participate in the development or provision of goods or services
in the area of residential conforming and nonconforming mortgage
origination. The enforcement, which is at the discretion of Patriot, of
this Section 6, for the period following the Termination Date, as a
result of either (i) a non-renewal of the Employment Period under
Section 5.1, or (ii) an Unjustified Termination under Section 5.2, shall
be conditioned upon Patriot paying to the Executive the compensation
payable under Section 4.1, Schedule A #1 - Salary/ Commission during the
entire Restricted Period (at 75% of the amount and in the same manner as
paid during the final year immediately preceding the Employment Period).
(b) The Executive covenants and agrees that during the Restricted
Period, the Executive will refrain from interfering with the employment
relationship between Patriot and its employees and will not solicit any
of such employees for employment by an entity other than Patriot.
Section 7. Delivery of Materials Upon Termination of Employment. As
requested by Patriot from time to time and upon the termination of the
Executive's employment with Patriot for any reason, the Executive will
promptly deliver to Patriot all copies and embodiments, in whatever form
or medium, of all Confidential Information in the Executive's possession
or within his control irrespective of the location or form of such
material and, if requested by Patriot, will provide Patriot with written
confirmation that all such materials have been delivered to Patriot.
Section 8. Nondisclosure and Non-use of Confidential Information. The
Executive will not, at any time, disclose or use any Confidential
Information of which the Executive is or becomes aware, whether or not
such information is developed by him, except to the extent that such
disclosure or use is directly related to and required by the Executive's
performance of duties assigned to the Executive pursuant to this
Agreement.
Section 9. Affiliates; Equitable Relief. The Executive acknowledges that
a breach or threatened breach by him of any of his covenants contained
in Sections 6, 7 and 8 of this Agreement could cause irreparable harm to
Patriot for which it would have no adequate remedy at law. Accordingly,
and in addition to any remedies which Patriot may have at law, in the
event of an actual or threatened breach by the Executive of his
covenants contained in Sections 6, 7 and 8 of this Agreement, Patriot
shall have the absolute right to apply to any court of competent
jurisdiction for such injunctive or other equitable relief as such court
may deem necessary or appropriate in the circumstances.
Section 10. No Prior Agreements. The Executive hereby represents and
warrants to Patriot that the execution of this Agreement by Executive,
his employment by Patriot, and the performance of his duties hereunder
will not violate or be a breach of any agreement with a former employer,
client, or any other Person. Further, Executive agrees to indemnify and
hold harmless Patriot and its officers, directors, and representatives
for any claim, including, but not limited to, reasonable attorney's fees
and expenses of investigation, of any such third party that such third
party may now have or may hereafter come to have against Patriot or such
other persons, based upon or arising out of any non-competition
agreement, invention, secrecy, or other agreement between Employee and
such third party that was in existence as of the date of this Agreement.
To the extent that Employee had any oral or written employment agreement
or understanding with Patriot, this Agreement shall automatically
supersede such agreement or understanding, and upon execution of this
Agreement by Employee and Patriot, such prior agreement or understanding
automatically shall be deemed to have been terminated and shall be null
and void.
Section 11. Miscellaneous.
11.1 Remedies. The parties to this Agreement shall have all rights and
remedies set forth in this Agreement, all rights and remedies which
either party has been granted at any time under any other agreement or
contract and all of the rights which either has under any law. Both
parties will be entitled to enforce such rights specifically, without
posting a bond or other security, to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other
rights granted by law or available in equity.
11.2 Waivers and Amendments. The provisions of this Agreement may be
amended or waived only by a written agreement executed and delivered by
Patriot and the Executive. No other course of dealing between the
parties to this Agreement or any delay in exercising any rights
hereunder will operate as a waiver of any rights of any such parties.
11.3 Successors and Assigns. All covenants and agreements contained in
this Agreement by or on behalf of any of the parties hereto and their
respective heirs, executors, administrators, personal representatives,
successors and assigns, whether so expressed or not; provided that the
Executive may not assign his rights or delegate his obligations under
this Agreement without the written consent of Patriot.
11.4 Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of this Agreement.
11.5 Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures
of more than one party, but all of which counterparts taken together
will constitute one and the same agreement.
11.6 Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
11.7 Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement will
be in writing and will be deemed to have been given when delivered
personally to the recipient, two business days after the date when sent
to the recipient by certified or registered mail, return receipt
requested and postage prepaid. Such notices, demands, and other
communications will be sent to the Executive and to Patriot at the
addresses set forth below. If to the Executive:
Xxxx Xxxxx
c/o Pinnacle Financial Division of Patriot National Bank
00 Xxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
And
Xxxx Xxxxx
00 Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000
If to Patriot:
Patriot National Bank
000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn. Chairman
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending
party.
11.8 No Third Party Beneficiary. This Agreement will not confer any
rights or remedies upon any person other than Patriot, the Executive and
their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
11.9 Entire Agreement. This Agreement constitutes the entire agreement
among the parties and supersedes any prior understandings, agreements or
representations by or among the parties, written or oral, that may have
related in any way to the subject matter hereof.
11.10 Construction. The language used in this Agreement will be deemed
to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any party.
Any reference to any federal, state, local or foreign statute or law
will be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The use of the word
"including" in this Agreement means "including without limitation" and
is intended by the parties to be by way of example rather than
limitation.
11.11 Life Insurance. The Executive agrees that Patriot shall have the
right to obtain life insurance on the Executive's life, at the sole
expense of Patriot, as the case may be, and with Patriot as the sole
beneficiary thereof. The Executive shall (a) cooperate fully in
obtaining such life insurance, (b) sign any necessary consents,
applications and other related forms or documents and (c) take any
reasonably required medical examinations.
11.12 Survival. Sections 6, 7, 8 and 9, of this Agreement will survive
and continue in full force in accordance with their terms
notwithstanding any termination of the Employment Period.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PATRIOT NATIONAL BANK
By: ____________________________
Its Chairman
____________________________
Xxxx Xxxxx
SCHEDULE A
Compensation
1. Salary / Commission. The Executive shall receive fifty(50%) percent
of the fee income generated by the Pinnacle Financial Division of
Patriot National Bank from mortgage transactions for customers directly
obtained by the Executive, and thirty five (35%) percent of such fee
income generated from mortgage transactions referred to the Executive by
other Patriot representatives. The annual amount payable pursuant to the
preceding sentence shall not exceed Three Hundred Thousand ($300,000.00)
Dollars per year, but shall not be less than One Hundred Fifty Thousand
($150,000.00) Dollars per year. This salary will be payable by Patriot
in regular installments in accordance with the general payroll practices
of Patriot as in effect from time to time, initially at the rate of One
Hundred Fifty Thousand ($150,000.00) Dollars per year until such time as
Three Hundred Thousand ($300,000.00) Dollars in fee income has been
generated, and thereafter, such draw rate will be adjusted to reflect
actual monthly fee income generation. The Executive shall not be
entitled to receive salary/commissions in respect of new lines of
business generated within the Pinnacle Financial Division of Patriot
National Bank (for example, warehouse lending), provided that any such
additional or new business generated by the Executive shall be taken
into account by Patriot's Management Committee and Board of Directors in
considering possible bonuses for the Executive.
2. Employee Override. In addition, if the Pinnacle Financial Division
earns $225,000.00 after-tax (after deduction of all expenses, salaries,
commissions and deduction for any employee override payments described
below), the Executive shall receive payments equal to (i) seven and
one-half (7.5%) percent of the commissions paid to the employees
reporting to the Executive where such employees earn fifty (50%) percent
or less of the fee income generated by such employees and (ii) three
(3%) percent of the commissions paid to the employees reporting to the
Executive where such employees earn over fifty (50%) percent of the fee
income generated by such employees. The amount of this employee override
payment shall be payable annually after the results of the annual audit
are certified provided that the Executive is employed by Patriot on the
last day of the Employment Period.
3. Profit Participation. After such time as the Pinnacle Financial
Division earns $330,000 (after deduction of all expenses, salaries,
commissions and employee override payments and profit participation
payments), the Executive and Xxxxxx Xxxxxxxxx shall collectively receive
fifty (50%) percent of the after-tax profits of the Business over Three
Hundred and Thirty Thousand ($330,000.00) Dollars (calculated on a
after-tax basis), which amount shall be divided between the Executive
and Xxxxxx Xxxxxxxxx on the basis of the profit contribution of their
respective areas in the Business, namely Long Island and Connecticut.
The Profit Participation amounts shall be payable on an annual basis
after the results of the annual audit are certified provided that the
Executive is employed on the last day of the Employment Period. In
calculating profits for purposes of this paragraph, the revenues and
expenses of the Business shall be accounted for in accordance with
generally accepted accounting principles, consistently applied. 4.
Referral Credits. In calculating profits for purposes of paragraph 3
above, the Pinnacle Financial Division of Patriot National Bank will
receive credit for referral fees for any loans booked by Patriot and
demand deposits maintained at Patriot, respectively, which are referred
to Patriot by either the Executive or Xxxxxx Xxxxxxxxx. Such credits
will not be included in calculating the salary/commissions described in
paragraph 1 above. Such credits shall be in the following amounts:
(i) Residential First Mortgages -- One (1%) percent of principal,
credited in twelve (12) equal monthly installments following the date
such loan is booked, provided such loan remains on the books during such
time;
(ii) Commercial Loans -- One (1%) percent of principal (renewals
of commercial loans and commercial lines of credit do not qualify);
(iii) Bridge Loans -- one quarter of one percent (.25%) of the
average annual balance for the first year;
(iv) Home Equity and Other Lines of Credit -- one-half of one
percent (0.50%) of the average annual balance for the first year;
(v) Deposits -- Credited on a schedule equivalent to the schedule
applicable for other loan officers of Patriot as determined by the
Management Committee and the Board of Directors from time to time
(see Schedule B); (vi) No referral credits will be given on residential
mortgages, HELOC, or end-financing on construction loans originated by
other Patriot employees, underwritten by Patriot and held in Patriot's
portfolio.
SCHEDULE B
Assumes a Base Salary of $150,000
% of Goal 90% 100% 125% 150% 175% 200%
% of Bonus Target Pay Out 75% 100% 125% 150% 175% 200%
Pay Out Deposits $984 $1,500 $1,875 $2,813 $3,281 $7,500
Deposits: $450,000 average per quarter (10% of loans) comprised of
checking, savings and money market accounts, of which at
least $150,000 shall be non-interest bearing checking
accounts. CD's are excluded.
