SETTLEMENT AGREEMENT/RELEASE
Exhibit 10.1
SETTLEMENT AGREEMENT/RELEASE
This Settlement Agreement/Release (this “Release”) is made this 11th day of February, 2009
between F.N.B. Corporation (“F.N.B. Corp.”) and ▇▇▇▇▇▇ ▇. New, Jr. (the “Executive”) (hereinafter
collectively referred to as the “Parties”).
WHEREAS, F.N.B. Corp. and the Executive are parties to an employment agreement dated October
10, 2007 (the “Employment Agreement”) and as supplemented by a Capital Purchase Program Agreement
and Waiver dated as of January 9, 2009;
WHEREAS, on February 5, 2009, the Executive notified F.N.B. Corp., after consultation with
F.N.B. Corp., that the Executive wished to resign, by this Agreement, all of his positions with
F.N.B. Corp. and First National Bank of Pennsylvania (the “Bank” and, collectively with F.N.B.
Corp., the “Employer”) provided an appropriate severance agreement/release could be negotiated;
WHEREAS, for the best interests of the Employer and the Executive, the Executive and the
Employer wish to agree on matters relating to the Executive’s resignation of all of his positions
with the Employer and all of the subsidiaries and affiliates of F.N.B. Corp. and the Bank on the
terms set forth in this Release and in the Employment Agreement; and
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, and intending to be legally bound hereby, the Executive and the Employer agree as
follows:
Section 1: Resignation from Employment.
(a) Resignation. As of 5:00 p.m. on the date of this Agreement as set forth above,
the Executive hereby resigns all of his positions, job duties and responsibilities with F.N.B.
Corp., the Bank and all of the subsidiaries of F.N.B. Corp. and the Bank and shall have no further
job duties or responsibilities on behalf of the Employer or any of its affiliates, predecessors,
successors or assigns. As of 5:00 p.m. on the date of this Agreement, the Executive and the
Employer agree that the Employment Agreement is hereby terminated. This resignation is not a
result of any disagreement Mr. New had about the operations, policies or practices of F.N.B.
Corporation or any of its subsidiaries or affiliates, nor is this resignation the result of any
disagreement that F.N.B Corp. had about the operations, policies or practices of Mr. New. The
resignation is the product of an agreement by the parties hereto as each Party has decided to take
different directions in the future.
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(b) Consideration. As long as the Executive remains in compliance with the terms and
conditions of this Release, then the Employer shall provide the consideration described in Section
2 to the Executive.
(c) Notice. To the extent that Employer alleges that Executive is not in compliance
with any provision of this Agreement then, in that event, the Employer shall give written notice of
the non-compliance to Executive and his counsel, via fax, email and certified mail, specifying the
event on non-compliance and the manner pursuant to which Executive may cure said non-compliance.
Such notice shall give Executive no less than thirty (30) days to cure such non-compliance or such
greater period as may be reasonably required under the facts presented. Any such notice shall be
sent as follows:
▇▇▇▇▇▇ ▇. New, Jr.
▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ & Westheimer, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ FAX
(▇▇▇) ▇▇▇-▇▇▇▇ TEL
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ & Westheimer, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ FAX
(▇▇▇) ▇▇▇-▇▇▇▇ TEL
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Section 2: Payments and Benefits to the Executive.
(a) Severance Payments. F.N.B. Corp. shall pay to the Executive his Base Salary at the
annual rate of $660,000 over a period of 18 months (an aggregate amount of $990,000 (the “Aggregate
Amount”)) in accordance with the Employer’s normal payroll practices as in effect from time to
time. It is the intent of all parties hereto that in the event any subsequent legislation affects
the payment hereunder the annual amount payable will be reduced to the amount necessary to comply
with such legislation provided that the Aggregate Amount will be paid in full in the shortest
period possible. This obligation survives the death of the Executive and shall continue to be
payable to his estate in the event Mr. New is deceased in advance of the full payment of the
Aggregate Amount.
(b) Waiver of Return of Reimbursement. F.N.B. Corp. hereby waives all rights it has
under Section 5 of the Employment Agreement for the repayment by the Executive of one-half of the
Relocation Costs (as defined in the Employment Agreement).
(c) COBRA. F.N.B. Corp. will reimburse the Executive for a period of 18 months for
his COBRA costs less the amount of the Executive’s required contribution, which is $269 per month.
F.N.B. Corp. agrees that the Executive’s required contribution hereunder will remain consistent
with the required contribution of any other executives of F.N.B. Corp.
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(d) Residence. F.N.B. Corp. agrees to purchase the Executive’s residence located at
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ for the purchase price of $748,000. Each of F.N.B. Corp.
and the Executive agree pay 50% of the real estate transfer taxes in connection with such purchase.
F.N.B. Corp. agrees to lease the residence to the Executive for a period of two months, with an
option exercisable by the Executive for one additional month, at rental rate of $1,000 per month,
with all utility service costs to be paid by the Executive. The Executive agrees that, during the
lease period, F.N.B. Corp. may list the residence for sale with a real estate broker of its choice
and the Executive will make the residence available for showing to potential buyers at reasonable
times from time to time by appointment. F.N.B. Corp. and its agent agree that no photography will
be used to depict the interior spaces of the residence while Mr. New occupies said residence, and
neither F.N.B. Corp. nor its agent will allow any prospective purchasers to photograph the inside
spaces of the residence during Mr. New’s occupancy without the express written permission of Mr.
New.
(e) Other Earned Compensation. F.N.B. Corp. shall reimburse the Executive for all
bona-fide business-related expenses incurred by the Executive prior to the date of his resignation,
and for which he has submitted appropriate and necessary receipts or other documentation as may be
required by the Employer, in accordance with the prevailing practices and policies of the Employer,
less any and all amounts owed to the Employer for personal expenses. The Executive acknowledges
that, other than the foregoing payments described in this Section 2, he has received payment in
full for all of the compensation, wages, benefits and payments of any kind otherwise due him from
the Employer, including compensation, bonuses, commissions, lost wages, severance, expense
reimbursements, payments to benefit plans, accrued but unused vacation and personal or sick time as
provided in the Employment Agreement or otherwise.
(f) Consideration and Value. The parties acknowledge that consideration described in
Sections 2 (a) and (b) represent amounts and terms in addition to anything of value to which the
Executive is otherwise entitled and represent good, valuable, and sufficient consideration for the
mutual promises and duties set forth in this Release.
Section 3: Release.
(a) Complete Release by the Executive. For and in consideration of the payments and
promises contemplated by Section 2 of this Release and for other good and valuable consideration as
more fully described herein, the receipt and adequacy of which is hereby acknowledged, the
Executive hereby irrevocably and unconditionally releases, waives and forever discharges all Claims
described in Section 3(a)(i) that he may now have against the Released Parties listed in Section
3(d) up to the date of this Release. However, the Executive does not release his right to enforce
this Release and his right, if any, to elect the continuation of health insurance coverage pursuant
to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”). The Executive acknowledges that
he will not be entitled to
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receive the monies and benefits payable under Section 2 unless he signs, and does not revoke,
this Release, and complies with the terms of this Release.
(i) Claims Released. Subject only to the exception set forth in Section 3(a), the
Executive hereby releases all known and unknown claims, promises, causes of action, or similar
rights of any type that the Executive presently may have (“Claims”) with respect to any and all of
the Released Parties listed in Section 3(a)(iii). These Claims include, but are not limited to,
any and all Claims that in any way relate to: (i) the Executive’s employment with the Employer, or
the resignation of that employment, such as Claims for compensation, bonuses, vested or unvested
stock options, commissions, lost wages, unpaid business expenses or unused accrued vacation or sick
pay; (ii) any Claims or rights the Executive may have to severance or similar benefits or (iii) any
Claims to attorneys’ fees, costs, or other indemnities. The Executive understands that the Claims
he is releasing might arise under many different laws, including but not limited to the following:
(A) Antidiscrimination statutes, such as Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1866 (42 U.S.C. 1981), the Executive Order 11246, which prohibit discrimination based
on race, color, national origin, religion, or sex; the Americans with Disabilities Act and Sections
503 and 504 of the Rehabilitation Act of 1973, which prohibit discrimination against the disabled;
the Age Discrimination in Employment Act (ADEA), which prohibits discrimination based on age; the
federal Equal Pay Act, any state Fair Employment Practices Act, the Equal Pay Act, any state Equal
Opportunity for Persons with Disabilities Code, any state Age Discrimination Act and any and all
other federal, state or local laws, rules, regulations, constitutions, ordinances or public
policies, whether known or unknown, prohibiting employment discrimination;
(B) Employment statutes, such as the WARN Act, which requires that advance notice be given of
certain workforce reductions; the Executive Retirement Income Security Act of 1974 (ERISA) which,
among other things, protects employee benefits; the Fair Labor Standards Act of 1938, which
regulates wage and hour matters; the National Labor Relations Act, which protects forms of
concerted activity; the Family and Medical Leave Act of 1993, which requires employers to provide
leaves of absence under certain circumstances; any state Minimum Wage Law and other wage laws, and
any and all other federal, state or local laws, rules, regulations, constitutions, ordinances or
public policies, whether known or unknown relating to employment laws; and
(C) Other laws, such as federal, state, or local laws restricting an employer’s right to
terminate employees, or otherwise regulating employment; any federal, state, or local law enforcing
express or implied employment contracts or requiring an employer to deal with employees fairly or
in good faith; any other federal, state, or local laws providing recourse for alleged wrongful
discharge, physical or personal injury, emotional distress, assault, battery, false imprisonment,
fraud, negligent misrepresentation, defamation, and similar or related claims.
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The laws referred to in this subsection 3(a)(v) include statutes, regulations, other
administrative guidance and common law doctrines.
(ii) Unknown Claims. The Executive understands that he is releasing Claims that he
may not know about, and that is his intent. The Executive expressly waives all rights he might
have under any law that is intended to prevent unknown claims from being released. The Executive
understands the significance of doing so.
(iii) Released Parties. The “Released Parties” or “Releasees” are the Employer, all
related companies, partnerships, joint ventures, parents, subsidiaries, affiliates, predecessors
and successors including, but not limited to Regency Finance Company, First National Insurance
Agency, LLC, First National Trust Company, First National Investment Services Company, LLC, and
F.N.B. Investment Advisors, Inc., and with respect to each such entity, all of its affiliates,
predecessors, successors, assigns, past and present partners, employees, officers, directors,
stockholders, owners, representatives, assigns, attorneys, agents, insurers, employee benefit plans
or programs and the trustees, administrators, fiduciaries, and insurers of such plans or programs,
and any other persons acting by, through, under, or in concert with any of the persons or entities
listed in this subsection.
(b) Complete Release by the Employer. In consideration of the promises by the
Executive contemplated by Section 1 of this Release and for other good and valuable consideration
as more fully described herein, the Employer hereby irrevocably and unconditionally releases,
waives and forever discharges the Executive from known and unknown claims, promises, causes of
action or similar rights of any type that the Employer may have against the Executive. It is
intended that this Release shall be construed to be the broadest release available under both
Pennsylvania and federal laws interpreting said release.
(c) Indemnity. To the extent that any litigation is filed against any of Mr. New,
arising out of , or related to, this Agreement or his employment with Employer and/or any and all
related companies, partnerships, joint ventures, parents, subsidiaries, affiliates, predecessors
and successors including, but not limited to Regency Finance Company, First National Insurance
Agency, LLC, First National Trust Company, First National Investment Services Company, LLC, and
F.N.B. Investment Advisors, Inc., and with respect to each such entity, all of its affiliates,
predecessors, successors, assigns, past and present partners, employees, officers, directors,
stockholders, owners, representatives, assigns, attorneys, agents, insurers, employee benefit plans
or programs and the trustees, administrators, fiduciaries, and insurers of such plans or programs,
and any other persons acting by through, under, or in concert with any of the persons or entities
listed in this subsection for which Mr. New is required to appear and give testimony, or otherwise
defend himself, the Released Parties shall fully indemnify Mr. New from any such matters. This
Indemnity shall include, but not be limited to, attorneys fees and expenses for the counsel of his
choice, damages that he may be required to pay, expert witness fees, travel expenses and
miscellaneous costs
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associated with any such defense. It is the intention of this indemnity to be the broadest
indemnity available under both Pennsylvania and federal laws.
Section 4: The Executive’s Promises and Representations.
(a) Employment Separation. The Executive promises never to knowingly seek employment
with the Employer or its affiliates. Nothing in this paragraph shall impair Employer from rehiring
Mr. New hereafter.
(b) Ownership of Claims. The Executive affirms that he has not assigned or
transferred any Claim against the Employer or any of the Released Parties, nor has he purported to
do so.
(c) Nonadmission of Liability. The Executive agrees that the payments made and other
consideration received pursuant to this Release are not to be construed as an admission of legal
liability by the Employer and that no person or entity shall utilize this Release or the
consideration received pursuant to this Release as evidence of any admission of liability since the
Employer expressly denies liability. The Executive agrees not to assert that this Release is an
admission of guilt or wrongdoing and acknowledges that the Released Parties do not believe or admit
that any of them has done anything wrong. Similarly, the Employer agrees that the terms of this
Release are not to be construed as an admission of legal liability by the Executive and that no
person or entity shall utilize this Release or the consideration received pursuant to this Release
as evidence of any admission of liability since the Executive expressly denies liability. F.N.B.
Corp. agrees not to assert that this Release is an admission of guilt or wrongdoing and
acknowledges that the Executive does not believe or admit that he has done anything wrong.
(d) Confidentiality of Terms of this Release. The Executive agrees not to divulge or
reveal at any time for any reason to any third party any of the details or terms of this Release
including, but not limited to, the amount of any consideration paid or payable hereunder, with the
exception that he may only disclose the terms of this Release to his spouse, attorney, financial
advisor, heirs, or accountant; provided that the recipient of such information agrees to abide by
the terms of confidentiality in this Release or as is necessary to comply with the law or
governmental regulations. The Executive acknowledges that the Employer is required to file this
Release with the Securities and Exchange Commission.
(e) Return of Company Property. Contemporaneous with the signing of this Agreement,
the Executive affirms that he has returned to the Employer all originals and copies of all files,
memoranda, documents, records, credit cards; keys, electronically or optically stored data, and any
other property of the Employer, the Employer’s clients or its affiliates in his possession, custody
or control including, but not limited to, the Employer’s records, office equipment, such as
computers and related equipment, telephones, pagers, etc.
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The Executive certifies that he has no property of the Employer, the Employer’s clients or its
affiliates in his possession or under his control.
(f) Return of Personal Property. Contemporaneous with the signing, the Employer
affirms that it has returned to the Executive, all of his personal property in its possession,
custody or control including, but not limited to, the Executive’s records, office equipment,
personal photographs, office decorations, etc. The Employer certifies that it has no property of
the Executive in its possession or under its control. Notwithstanding the foregoing, it is
understood that the Bank after hours on the date hereof will make available the such personal
property to the Executive.
(g) No Disparagement. Both Parties agree to not, either directly or indirectly, (i)
criticize, denigrate, or disparage any other Party, its (his) employees and/or its services, (ii)
discredit or otherwise engage in any act, not compelled by law, which may tend to bring
disparagement, disrepute, ridicule, or scorn upon any other Party, its (his) employees or its (his)
services or (iii) engage in any conduct that disparages, or is intended to disparage, the
reputation, good will or commercial interests of the other Party, its (his) employees or its
services.
(h) Cooperation and Transition of Duties. The Executive agrees to fully cooperate in
the transition of his duties and responsibilities as directed by the Employer including, but not
limited to, being available to meet or speak with the designated officers and/or managers of the
Employer or its affiliates during or after the end of his employment concerning the operations of
the Employer, the status of various projects, and the locations of any files, documents or other
property of the Employer, its clients or its affiliates. The Executive agrees to fully cooperate
with any such requests of the Employer to participate in the preparation for, response to,
prosecution of and/or defense of any pending, actual or threatened litigation involving the
Employer, its clients, vendors and/or its affiliates. F.N.B. Corp. will reimburse the Executive
for all reasonable out-of-pocket expenses incurred by the Executive as a result of such
cooperation.
(i) Press Release. The Employer agrees that it is appropriate, and well deserved, to
issue the Press Release attached hereto as Exhibit B.
Section 5: Consideration of Release. Both Parties acknowledge that, before
signing this Release, (a) they have carefully read this Release; (b) they fully understood it; (c)
it is written in a manner that is understandable to both of them; and (d) they are entering into it
voluntarily.
Section 6: Miscellaneous.
(a) Entire Release. This Release is the entire agreement between the Executive and the
Employer. This Release may not be modified or canceled in any manner
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except by a writing signed by both the Executive and an authorized officer of the Employer.
The Executive acknowledges that the Employer has made no promises, assurances, or representations
of any kind to the Executive other than those explicitly contained in this Release.
(b) Successors. This Release binds both Party’s heirs, administrators,
representatives, executors, successors, and assigns, and will inure to the benefit of all Parties
and their respective heirs, administrators, representatives, executors, successors, and assigns.
(c) Consideration Period. The Executive acknowledges that the Employer has advised
him to consult with an attorney prior to executing this Release. The Executive also acknowledges
that he has been given a period of at least 21 days within which to consider the Release. In the
event the Executive desires to execute this Release prior to the end of this consideration period,
he shall also execute and provide to the Employer an endorsement as provided in Exhibit A. For a
period of seven days following the execution of this Release, the Executive may revoke this
Release, and this Release shall not become effective or enforceable until the revocation period has
expired (“Effective Date”).
(d) Severability. Should any clause of this Release be found to be in violation of
law, or ineffective or barred for any reason whatsoever, the remainder of the Release shall be in
full force and effect; provided, however, that if any release, waiver or agreement set forth in
this Release is declared to be invalid, illegal or unenforceable in whole in or in part, the
Employer shall have the right to elect to consider its obligations under this Release to be
nullified and in such case, any payments or benefits that had been or were to be afforded under
this Release shall be returned to the Employer with interest. Nothing in this paragraph, should
any other provision of this agreement be so declared, shall affect the obligation to pay money and
benefits to Executive, and no provision in this Agreement shall be interpreted to alter, impair or
diminish any obligation to pay the consideration specified in Section 2 (other than as expressly
set forth in Section 2). It is agreed by both Parties that the Section 2 consideration is the
essence of this Agreement and if the Section 2 consideration were somehow impaired (otherwise than
as expressly set forth in Section 2) that this Agreement should be void.
(e) Interpretation and Governing Law. This Release shall be construed as a whole
according to its fair meaning. It shall not be construed strictly for or against the Executive, the
Employer, or any of the Released Parties. This Release shall be governed by the statutes and
common law of the Commonwealth of Pennsylvania, excluding its choice of law statutes and common
law.
(f) Knowing and Voluntary. The Executive affirms that he has carefully read the
foregoing Release, that it is written in a manner that is understandable to him, that he fully
understands the meaning and intent of this document, that he has signed the Release
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voluntarily and knowingly, and that he intends to be bound by the promises contained in this
Release for the aforesaid consideration.
(g) Negotiation. All parties shall attempt in good faith to resolve any controversy,
claim or dispute or whatever nature between the Executive and the Employer arising out of or
related to this Agreement or the construction interpretation, performance, breach, termination,
enforceability or validity hereof (herein a “Dispute”) promptly by negotiation between the
Executive and the Employer. Any Participant involved in the Dispute may give written notice
(herein the “Dispute Notice”) of the Dispute at any time. If the Dispute is not resolved within
thirty (30) days after delivery of Dispute Notice, any Participant involved in the Dispute may
initiate mediation as provided in the following section below.
(h) Mediation. If the Dispute is not resolved by negotiation, the Executive and the
Employer shall make a good faith attempt to settle the Dispute by mediation. If the Executive and
the Employer cannot agree on the rules and procedures for the mediation then the Commercial Dispute
Resolution Procedures of the American Arbitration Association in effect on the date of this
Agreement (herein the “AAA Rules”) shall apply. If the Executive and the Employer cannot agree on
the selection of a mediator within sixty (60) days after delivery of the Dispute Notice, the
mediator will be selected pursuant to the AAA Rules. Unless the Executive and the Employer
otherwise agree, the mediator shall be a neutral and impartial certified public accountant or
lawyer with excellent academic and professional credentials, who has actively practiced accounting
or law for at least fifteen (15) years, and who has both training and experience as a mediator.
(i) Fees. The Employer agrees to reimburse the Executive for the reasonable fees and
expenses of the Executive’s attorneys and for court and related costs in any proceeding to enforce
the provisions of this Agreement in which the Executive had succeeded on the merits. The Executive
agrees to reimburse the Employer for the reasonable fees and expenses of the Employer’s attorneys
and for court and related costs in any proceeding to enforce the provisions of this Agreement in
which the Employer had succeeded on the merits.
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TAKE THIS RELEASE HOME, READ IT, AND CAREFULLY CONSIDER ALL OF ITS PROVISIONS BEFORE SIGNING
IT: IT INCLUDES A RELEASE OF KNOWN AND UNKNOWN CLAIMS.
IN WITNESS WHEREOF and intending to be legally bound, the Executive and the Employer have
executed this Release on the dates indicated below:
| Date: February 11, 2009 | /s/ ▇▇▇▇▇▇ ▇. New, Jr. | |||
| ▇▇▇▇▇▇ ▇. New, Jr. | ||||
| F.N.B. CORPORATION |
||||
| Date: February 11, 2009 | By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chairman of the Board | ||||
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EXHIBIT A
I , ▇▇▇▇▇▇ ▇. New, Jr., hereby acknowledge that I was given 21 days to consider the foregoing
Release and voluntarily chose to sign the Release prior to the expiration of the 21-day period.
I declare under penalty of perjury under the laws of the Commonwealth of Pennsylvania that the
foregoing is true and correct.
EXECUTED this 11th day of February, 2009 at Hermitage, Pennsylvania.
| /s/ ▇▇▇▇▇▇ ▇. New, Jr. | ||||
| ▇▇▇▇▇▇ ▇. New, Jr. | ||||