Exhibit 10.3
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), made as of September 7, 1999
is by and between Premier National Bank, a national banking association having
its principal place of business at Xxxxx 00, XxXxxxxxxxxxx, Xxx Xxxx 00000 (the
"Company"), and Xxx X. Xxxx, residing at 0 Xxxxx Xxxxx, Xxxxxxx, XX 00000 (the
"Executive").
W I T N E S S E T H:
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WHEREAS, the Company, a wholly-owned subsidiary of Premier (as hereinafter
defined), has determined that it is in its best interests to employ the
Executive as Chief Administrative Officer pursuant to a written employment
agreement, as hereinafter provided; and
WHEREAS, the Executive desires to accept such employment, upon the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in furtherance of the interests described above and in
consideration of the respective covenants and agreements contained herein, the
parties hereto agree as follows:
1. Agreement of Employment. During the term of employment provided for in
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this Agreement, the Company agrees to employ the Executive, and the Executive
agrees to accept employment and to serve the Company, as Chief Administrative
Officer, all upon the terms and conditions hereinafter set forth.
2. Term.
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(a) Effective Date. This Agreement and the employment of the Executive
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under this Agreement shall become effective as of September 7, 1999 (the
"Effective Date").
(b) Duration of Agreement. This Agreement shall terminate on the twelve
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(12) month anniversary of the Effective Date (the "Initial Term"), but shall be
extended automatically for additional one year periods (each, a "Renewal Term")
unless the Company or the Executive gives written notice to the other party that
the Agreement shall not be so extended at least twelve (12) months prior to the
expiration of the Initial Term or any Renewal Term (a "Failure to Renew"), in
which case this Agreement shall terminate on the expiration of such Initial Term
or such Renewal Term; provided, however, that after a Change in Control (as
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hereinafter defined) no termination of this Agreement pursuant to a Failure to
Renew by the Company shall be effective prior to the expiration of twenty-four
(24) months after such Change in Control (such period being referred to herein
as the "CIC Coverage Period"). Notwithstanding any other provision of this
Agreement, nothing contained in this Agreement shall prohibit or prevent the
continued employment of the Executive by the Company, as Chief Administrative
Officer or in any other capacity, after the termination of this Agreement as a
result of a Failure to Renew. Except as specifically set forth herein, the terms
and provisions of this Agreement shall not govern, control or be applied to any
such continued employment of the Executive by the Company in any capacity after
the termination of this Agreement as a result of a Failure to Renew.
Notwithstanding any other provision of this Agreement, nothing contained in this
Agreement shall be deemed to create any obligation on the part of the Company or
the Executive to extend this Agreement beyond the Initial Term or any Renewal
Term.
(c) Duration of Employment Pursuant to this Agreement. Notwithstanding any
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Failure to Renew this Agreement, the employment of the Executive under this
Agreement shall be terminated only pursuant to, and in compliance with, the
terms and conditions set forth in Section 6 herein. A Failure to Renew this
Agreement in and of itself shall not (i) constitute termination of the
employment of the Executive under this Agreement pursuant to, or for purposes
of, any provision of Section 6 herein or (ii) give rise to any obligation on the
part of the Company to make, or any right on the part of the Executive to
receive, any payments or other benefits provided for pursuant to Section 6
herein.
3. Duties. The Executive shall perform the duties and discharge the
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responsibilities of Chief Administrative Officer of the Company and shall
perform all other duties and responsibilities as may reasonably be assigned from
time to time by the Chief Executive Officer of the Company. The Executive agrees
to devote substantially all of his business time to the Company's business and
affairs and the performance of the services provided for herein.
4. Compensation. For the services rendered by the Executive to the Company
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under this Agreement, the Company shall compensate the Executive as follows:
(a) Salary. The Company shall pay the Executive for services an annual
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salary of $ 200,000 (the "Annual Base Salary"), payable in accordance with the
payroll practices of the Company applicable to all employees and subject to
periodic review and increase in accordance with the Company's salary
administration program and policies as may be in effect from time to time.
(b) Bonus and Executive Benefits. The Executive shall be entitled to
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participate, on an equitable basis with other executive personnel of the
Company, in such bonus programs as the Company may extend from time to time to
its executive personnel. The Executive shall be entitled to receive, on the same
basis as other executive personnel of the Company, group employee benefits such
as sick leave, group disability and health, life and accident insurance and
similar benefits as the Company may extend from time to time to its employees.
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5. Reimbursement of Business Expenses. The Company shall promptly reimburse
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the Executive for all reasonable travel and other business expenses incurred by
him in the performance of his duties and responsibilities hereunder, subject to
such reasonable requirements with respect to substantiation and documentation as
may be specified by the Company.
6. Termination.
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(a) Termination for Cause. The Company may terminate the employment of
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the Executive hereunder if the Executive (i) commits any violation of any law,
rule or regulation or of a cease and desist order with respect to Premier, the
Company or any of their subsidiaries (each hereinafter referred to as a
"Subsidiary") which has become final, (ii) engages or participates in any unsafe
or unsound practice in connection with Premier, the Company or any Subsidiary
regardless of whether actual harm or damages result to Premier, the Company or
any Subsidiary, (iii) commits or engages, or fails to commit or engage, in any
act or practice, which action or practice or the failure to engage in such
action or practice involves personal dishonesty on the part of the Executive or
demonstrates a willful or continuing disregard for the best interests of
Premier, the Company, or any Subsidiary, (iv) is adjudicated to be of an unsound
mind, (v) is adjudicated to be bankrupt, (vi) intentionally destroys the
property of Premier, the Company or any Subsidiary, (vii) breaches or violates
in any material respect any agreement with Premier, the Company or any
Subsidiary signed by the Executive, including, but not limited to, this
Agreement and any other confidentiality and nondisclosure agreements, (viii)
engages in dishonorable or disruptive behavior, practices or acts that would be
reasonably expected to harm or bring into disrepute Premier, the Company or any
Subsidiary, or any of their businesses or employees, (ix) is convicted of a
felony, or (x) continually fails to substantially perform his duties under
Section 3 hereof for a period of thirty (30) days (other than as a result of a
disability pursuant to Section 6(g) hereof) after delivery by the Company to the
Executive of a written demand for substantial performance, stating with
reasonable detail the nature of such failure and affording the Executive an
opportunity, as soon as practicable, to correct the acts or omissions specified.
Termination pursuant to this Section 6(a) shall be referred to herein as a
"Termination for Cause." A Termination for Cause shall be effective immediately
upon written notification thereof by the Company unless otherwise specified in
the written notice. Upon a Termination for Cause, whether such Termination for
Cause occurs prior or subsequent to a Change in Control (as hereinafter
defined), the Company shall have no further obligation to pay the Executive's
Annual Base Salary or to provide any employee or other benefits hereunder except
for any Annual Base Salary or other such benefits that have fully accrued and
vested but not been paid as of the effective date of such termination.
(b) Termination Without Cause. At any time after the Effective Date, the
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Company may terminate the employment of the Executive hereunder without cause
for any reason. Such termination shall be effective by the Company providing the
Executive
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with a written notice of termination at least thirty (30) days prior to the
effective date of such termination. Termination pursuant to this Section 6(b)
shall be referred to herein as "Termination Without Cause."
(c) Termination by the Executive for Good Reason. At any time after the
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Effective Date, the Executive may terminate his employment hereunder if any one
or more of the following occurs without the written consent of the Executive:
(i) a reduction by the Company in the Executive's Annual Base Salary as in
effect on the Effective Date or as the same may be increased from time to time;
(ii) the failure by the Company to pay to the Executive any portion of the
Executive's then-current compensation, or to pay to the Executive any portion of
an installment of deferred compensation under any deferred compensation program
of the Company, in each case within seven (7) days of the date such compensation
is due; (iii) any failure by the Company to comply with and satisfy Section
10(b) hereof; (iv) any material breach by the Company of this Agreement if such
breach is not cured within a period of thirty (30) days after delivery by the
Executive to the Company of a written notice stating with reasonable detail the
nature of such breach and affording the Company an opportunity, as soon as
practicable, to cure such breach; (v) the Executive is required by the Company
to occupy a position or positions in the Company, the function or functions of
which is or are materially inconsistent with the Executive's skills and
experience at that time; (vi) after or in connection with any Change in Control
(as hereinafter defined), the Executive is required to be based at any office or
location that is more than fifty (50) miles from the nearer of (A) the
Executive's residence or (B) the Company's administrative headquarters
immediately prior to the Change in Control. Termination pursuant to this Section
6(c) shall be referred to herein as a "Termination for Good Reason." A
Termination for Good Reason shall be effective immediately upon written
notification thereof by the Executive.
(d) Benefits in the Event of a Termination Without Cause or a Termination
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for Good Reason. In the event of a Termination Without Cause or a Termination
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for Good Reason the Executive shall be entitled to the following:
(i) If a Termination Without Cause or a Termination for Good Reason
occurs at any time other than during the CIC Coverage Period, the Company
shall be obligated to make an undiscounted lump sum payment to the
Executive equal to the Executive's Annual Base Salary as in effect on the
effective date of such termination (without giving effect to any
reduction in Annual Base Salary described in Section 6(c)(i) hereof),
such payment to be made within ten (10) business days of the effective
date of such Termination Without Cause or Termination for Good Reason, as
the case may be.
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(ii) If a Termination Without Cause or a Termination for Good Reason
occurs during the CIC Coverage Period, the Executive shall be entitled to
an undiscounted lump sum payment equal to the product of (A) the
Executive's Annual Base Salary as in effect on the effective date of such
termination (without giving effect to any reduction in Annual Base Salary
described in Section 6(c)(i) hereof) and (B) three (3).
(e) Termination by the Executive Without Good Reason. The Executive may
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voluntarily terminate his employment hereunder without cause for any reason
other than the occurrence of any event set forth in Section 6(c) hereof by
providing the Company with a written notice of termination at least forty-five
(45) days prior to the effective date of such termination. Termination pursuant
to this Section 6(e) shall be referred to herein as a "Termination Without Good
Reason." Upon a Termination Without Good Reason, whether such Termination
Without Good Reason occurs prior or subsequent to a Change in Control (as
hereinafter defined), the Company shall have no further obligation to pay the
Executive's Annual Base Salary or to provide any other employee or other
benefits hereunder except for any Annual Base Salary or other such benefits that
have fully accrued and vested but not been paid as of the effective date of such
termination.
(f) Death. The employment of the Executive hereunder shall terminate
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automatically effective as of the death of the Executive, in which case the
Company shall have no further obligation to pay the Executive's Annual Base
Salary or to provide any other employee or other benefits hereunder except for
any Annual Base Salary or other such benefits that have fully accrued and vested
but not been paid as of the effective date of such termination.
(g) Disability. If, during the Initial Term or any Renewal Term, the
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Executive suffers an illness or incapacity of such a character as to prevent or
preclude him from devoting substantially full working time to his employment
hereunder or otherwise from carrying out any substantial portion of the normal
and usual duties of his employment hereunder for 180 days (whether or not
consecutive) during any twelve-month period, then the employment of the
Executive hereunder may be terminated by the Company (a "Disability
Termination") upon thirty (30) days' prior written notice to the Executive, such
Disability Termination to be effective as of the expiration date of such thirty
(30) days' notice. During the period of the Executive's disability and until the
expiration date of such thirty (30) days' notice, the Executive shall continue
to earn all compensation provided herein as if he had not been disabled, such
compensation to be paid at the time, in the amounts, and in the manner provided
for herein. Upon the effectiveness of any Disability Termination, whether such
Disability Termination occurs prior or subsequent to a Change in Control (as
hereinafter defined), the Company shall have no further obligation to pay the
Executive's Annual Base Salary or to provide any other employee or other
benefits hereunder except for any Annual Base Salary or other such benefits that
have fully accrued and vested but not been paid as of the effective date of such
termination.
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(h) Change in Control. As used in this Agreement, "Change in Control" shall
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mean a change in control of Premier National Bancorp, Inc., a New York
corporation, or any successor thereto ("Premier"), of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A (or in response to any similar item on any similar schedule or form)
promulgated under the Securities Exchange Act of 1934, as amended from time to
time, whether or not Premier is then subject to such reporting requirement;
provided, however, that without limitation, a Change in Control shall be deemed
to have occurred if:
(i) Premier consummates a merger, consolidation, share exchange,
division or other reorganization or transaction of Premier (a
"Fundamental Transaction") with any other corporation, other than a
Fundamental Transaction that the Board of Directors of Premier declares a
"Merger of Equals" or that results in the voting securities of Premier
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least fifty-one percent (51%) of the combined voting
power immediately after such Fundamental Transaction of (i) Premier's
outstanding securities, (ii) the surviving entity's outstanding
securities, or (iii) in the case of a division, the outstanding
securities of each entity resulting from the division;
(ii) the shareholders of Premier approve a plan of complete
liquidation or winding-up of Premier or an agreement for the sale or
disposition (in one transaction or a series of transactions) of all or
substantially all of Premier's assets;
(iii) as a result of a proxy contest, individuals who, prior to the
conclusion thereof, constituted the Board of Directors of Premier
(including for this purpose any new director whose election or nomination
for election by Premier's shareholders in connection with such proxy
contest was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who were directors prior to such proxy
contest) cease to constitute at least a majority of the Board of
Directors of Premier (excluding any Board of Directors seat that is
vacant or otherwise unoccupied); or
(iv) the Board of Directors of Premier determines that a Change in
Control has occurred.
(i) Continued Benefits. After any Termination Without Cause pursuant to
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Section 6(b) or any Termination for Good Reason pursuant to Section 6(c),
whether prior or subsequent to a Change in Control, the Company shall provide
the Executive with life and health insurance benefits substantially similar to
those which the Executive is receiving
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immediately prior to the effective date of such Termination Without Cause or
Termination for Good Reason (such effective date being referred to as the "Date
of Termination"), as the case may be, for (i) with respect to any such
termination that occurs at any time other than during the CIC Coverage Period, a
twelve-month period beginning on the Date of Termination, and (ii) with respect
to any such termination that occurs during the CIC Coverage Period, a
twenty-four (24) month period beginning on the Date of Termination (the
applicable period described in the preceding clause (i) or (ii) being referred
to as the "Benefits Period"). Benefits otherwise receivable by the Executive
pursuant to this Section 6(i) shall be reduced to the extent comparable benefits
are actually received by or made available to the Executive by any other
employer(s) during the Benefits Period at a cost to the Executive that is
commensurate with the cost incurred by the Executive immediately prior to the
Date of Termination; provided, however, that if the Executive becomes employed
by a new employer which maintains a medical plan that either (A) does not cover
the Executive or a family member or dependent with respect to a preexisting
condition which was covered under the applicable Company medical plan, or (B)
does not cover the Executive or a family member or dependent for a designated
waiting period, the Executive's coverage under the applicable Company medical
plan shall continue until the earlier of the end of the applicable period of
noncoverage under the new employer's plan or the end of the applicable period as
set forth in this Section 6(i). If health insurance benefits are provided or
made available to the Executive by any other employer(s) of the Executive during
the Benefits Period at a cost that is not commensurate with the cost incurred by
the Executive immediately prior to the Executive's Date of Termination, the
Company may, at its election, make periodic cash payments to the Executive that
are sufficient to reimburse the Executive, in advance and on a before-tax basis,
for the additional cost incurred by the Executive for such health insurance
benefits. During any period with respect to which the Company makes such
reimbursement payments to the Executive, the Executive shall be treated herein
as receiving such health insurance benefits at a cost that is commensurate with
the cost incurred by the Executive immediately prior to the Executive's Date of
Termination. The Executive shall be entitled to elect to change his level of
coverage and/or his choice of coverage options (such as Executive only or family
medical coverage) with respect to the benefits to be provided by the Company to
the Executive to the same extent that active employees of the Company are
permitted to make such changes; provided, however, that in the event of any such
change the Executive shall pay the amount of any cost increase that would
actually be paid by an active employee of the Company by reason of making the
same change in his level of coverage or coverage options. Any such benefits
actually received by or made available to the Executive from such other
employer(s) shall be reported to the Company by the Executive.
(j) Limitation on Certain Benefits. Notwithstanding any other provision of
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this Agreement, in the event that any payment or benefit received or to be
received by the Executive in connection with a Change in Control or the
termination of the Executive's employment pursuant to Section 6 hereof (whether
under the terms of this Agreement or any other plan, arrangement or agreement)
(all such payments and benefits, including the payments and benefits provided
for hereunder, being hereinafter called "Total Payments")
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would not be deductible (in whole or part) by the Company, an affiliate or other
person or entity making such payment or providing such benefit as a result of
section 280G of the Internal Revenue Code of 1986, as amended (the "Code"),
then, to the extent necessary to make such portion of the Total Payments
deductible, (A) any cash payments provided for by Section 6 hereof shall first
be reduced (if necessary, to zero), and (B) any non-cash benefits provided for
by Section 6 hereof shall next be reduced. For purposes of this limitation, no
portion of the Total Payments the receipt or enjoyment of which the Executive
shall have waived by written notice to the Company prior to the date of any cash
payment provided for by Section 6 hereof shall be taken into account. All
determinations required to be made under the provisions of this Section 6(j)
shall be made by tax counsel selected by the Company's or Premier's independent
auditors and reasonably acceptable to the Executive.
(k) Survival. Notwithstanding any other provision herein, the Company's
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obligations to make payments and provide benefits pursuant to the terms and
conditions set forth in this Section 6 shall survive termination of employment
under this Agreement pursuant to this Section 6 hereof and/or termination of
this Agreement by reason of a Failure to Renew pursuant to Section 2(b) hereof.
7. Confidentiality. The Company and the Executive acknowledge that each of
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Premier and the Company competes in a highly competitive industry and in
competitive markets and that, as an executive officer of the Company, the
Executive may have access to proprietary and confidential information, technical
information and trade secrets of Premier, the Company and/or a Subsidiary.
During the term of the Executive's employment hereunder and thereafter, the
Executive agrees that he will not, without the written consent of the Company,
disclose or permit any person under his control to disclose to any person or
entity not properly entitled to the information or use in any way for his own
benefit or the benefit of any other person or entity other than Premier, the
Company or any Subsidiary any confidential or proprietary information or
technical information or any trade secret of or relating to Premier, the Company
or any Subsidiary other than (a) information that is publicly disseminated or
(b) as required by any court, supervisory authority, administrative agency or
applicable law. Notwithstanding any other provision herein, the provisions of
this Section 7 shall survive termination of employment under this Agreement
pursuant to Section 6 hereof and/or termination of this Agreement by reason of a
Failure to Renew pursuant to Section 2(b) hereof.
8. Competition.
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(a) Noncompete Agreement. In consideration of the Company's agreement to
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employ the Executive hereunder, the Executive hereby agrees that during the
Noncompete Period (as hereinafter defined), without the prior written approval
of the Company, the Executive shall not, directly or indirectly, enter into or
in any manner take part in any business, either individually or as an officer,
director, employee, agent, consultant, partner, investor (excluding passive
investments in publicly traded securities not aggregating more than 1% of any
such entity's total outstanding voting securities),
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principal or otherwise, which is in competition with the business of Premier,
the Company or any Subsidiary in any business in which Premier, the Company or
any Subsidiary is materially engaged on the date of termination in any state or
territorial jurisdiction (including the District of Columbia) in which Premier,
the Company or any Subsidiary is so materially engaged on the date of
termination. The Executive further agrees that during the Noncompete Period he
shall not, directly or indirectly, acting either alone or in concert with
others, seek to (i) influence any employee of Premier, the Company or any
Subsidiary to leave or otherwise terminate his or her employment with such
entity or (ii) solicit business from or otherwise do business or deal with any
person or entity who is, on the date of termination, a customer of Premier, the
Company or any Subsidiary, in connection with any product or service similar to
or competitive with any product or service offered or provided by Premier, the
Company or any such Subsidiary (to such customer or otherwise) on the date of
termination.
(b) Certain Definitions.
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(i) As used herein, "Noncompete Period" shall mean the period
commencing on the Effective Date and ending on (i) in the case of any
Termination Without Cause or Termination for Good Reason occurring
subsequent to a Change in Control, the effective date of such termination
pursuant to Section 6, or (ii) in the case of any other termination of
employment pursuant to Section 6 hereof, the first anniversary of the
effective date of such termination pursuant to Section 6.
(ii) As used herein, the phrase "a customer of Premier, the Company or
any Subsidiary" shall mean any person or entity who has, at the time, an
effective contract with Premier, the Company or a Subsidiary, as the case
may be, under which Premier, the Company or such Subsidiary provides
products, services or a loan. In the case of any customer which is a
subsidiary, division or other business unit, or a department, agency,
authority or other political subdivision or instrumentality of a municipal,
state or federal government (in each case, a "Unit"), the phrase " a
customer of Premier, the Company or any Subsidiary" shall mean only such
Unit, and not any affiliated or related business unit or any other
department, agency or subdivision of such government (unless such other
unit, department, agency or subdivision is itself a customer of Premier,
the Company or a Subsidiary).
(c) Executive's Acknowledgment. The Executive acknowledges that he has
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carefully read and considered all of the terms of this Agreement, including
particularly the terms of this Section 8 and the preceding Section 7, that each
of Premier and the Company has made a substantial investment in Premier's and
the Company's business and that the restrictions provided in this Section 8 and
the preceding Section 7 are reasonable and necessary for Premier's and the
Company's protection. The Executive
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further acknowledges that damages at law will not be a measurable or adequate
remedy for breach of the covenants contained in this Section 8 or in Section 7
and, accordingly the Executive consents to the entry by any court of competent
jurisdiction of any order enjoining him from violating any such covenants. The
parties hereto further agree that if, in any judicial proceeding, a court should
refuse to enforce any covenants set forth in this Section 8 or in Section 7
because of their term or geographical scope, then such covenants shall be deemed
to be modified to permit their enforcement to the maximum extent permitted by
law. Notwithstanding any other provision herein, the provisions of this Section
8 shall survive termination of employment under this Agreement pursuant to
Section 6 hereof and/or termination of this Agreement by reason of a Failure to
Renew pursuant to Section 2(b) hereof.
9. Governing Law; Consent to Jurisdiction. This Agreement shall in all
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respects, including all matters of construction, validity and performance, be
governed by and construed and enforced in accordance with the laws of the State
of New York applicable to agreements made and to be performed entirely within
such jurisdiction. Each party hereto irrevocably consents to the exclusive
jurisdiction of the courts of the State of New York and the federal courts
situated in the State of New York in connection with any action to enforce the
provisions of this Agreement, to recover damages or other relief for breach or
default under this Agreement, to enforce any decision or award of any
arbitrators, or otherwise arising under or by reason of this Agreement.
10. Successors and Assigns.
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(a) Personal Services Agreement. This Agreement is a personal services
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contract which may not be assigned or delegated by the Executive to, or assumed
from the Executive by, any other person or entity without the prior written
consent of the Company. Subject to the foregoing limitation, this Agreement and
all rights hereunder shall inure to the benefit of and be enforceable by the
parties hereto, their personal or legal representatives, heirs and permitted
successors and assigns. If the Executive should die while any amounts still are
payable to him hereunder if he had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the Executive's devisee, legatee, or other designee or, if there be
no such designee, to the Executive's estate.
(b) Successors to the Company. In addition to any obligations imposed by
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law upon any successor to the Company, the Company shall be obligated to require
any successor (whether direct or indirect, by purchase, merger, consolidation,
operation of law or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place; in the event of
such a succession, references to the "Company" herein shall thereafter be deemed
to include such successor. Failure of the Company to obtain such assumption and
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement.
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11. Miscellaneous.
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(a) Notices. Any and all notices required or permitted to be given
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hereunder shall be in writing and shall be deemed to have been given when
delivered personally or by facsimile or, if mailed, upon mailing by certified or
registered mail, postage prepaid, addressed as follows (or at such other address
as may hereafter be designated by notice given in compliance with the terms
hereof):
If to the Executive: 0 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
If to the Company: Premier National Bank
c/o Premier National Bancorp, Inc.
Xxxxx 00
XxXxxxxxxxxxx, Xxx Xxxx 00000
Attention: Chairman of the Board's Personnel and
Compensation Committee
Facsimile: (000) 000-0000
Any party may change by notice the address to which notices to it are to be
addressed.
(b) Waivers. A waiver by any party hereto of any of the terms or conditions
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of this Agreement shall not operate as, constitute or be construed to be a
waiver thereof for the future or of any subsequent breach thereof.
(c) Amendments, Etc. This Agreement may not be varied, altered, modified,
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waived, changed, departed from or in any way amended except by an instrument in
writing executed by the parties hereto or their legal representatives.
(d) Severability. Any term or provision of this Agreement which is invalid
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or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
affecting the validity or enforceability of any other term or provision hereof
in that or any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted so as to be
enforceable.
(e) Withholding. All payments to the Executive provided for hereunder shall
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be paid net of (a) any applicable Social Security taxes and withholding taxes
required under federal, state or local law or regulation, (b) any other taxes
that may be lawfully levied by any governmental authority which may be required
by law from time to time to be withheld and (c) any additional withholding to
which the Executive has agreed.
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(f) Counterparts. This Agreement may be executed in any number of
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counterparts, which taken together shall be deemed to constitute one original.
(g) No Right to Continued Employment. Nothing in this Agreement shall be
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deemed to give the Executive the right to be retained in the employ or service
of the Company (or any successor thereto), or to interfere with the right of the
Company (or any successor thereto) to discharge the Executive at any time,
subject in all cases to the terms of this Agreement.
(h) Entire Agreement. This agreement contains the entire agreement between
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the parties concerning the employment of the Executive by the Company, and
supersedes any employment or change in control agreements between the Executive
and the Company or any of its predecessors, subsidiaries or predecessors of
subsidiaries.
(i) Headings and Captions. Headings and paragraph captions used in this
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Agreement are intended for convenience of reference only and shall not affect
the interpretation of this Agreement.
(j) Supervisory Suspension. Notwithstanding any other provision of this
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Agreement, in the event the Executive is suspended from office and/or
temporarily prohibited from participating in the conduct of the affairs of
Premier, the Company or any Subsidiary by a notice served under Section 8(e)(3)
or 8(g)(1) of the Federal Deposit Insurance Act, 12 U.S.C. ss. 1818(e)(3) or
1818(g)(1), the Company's obligations under this Agreement shall be suspended
effective as of the service date of the notice of suspension or temporary
prohibition, unless stayed by appropriate proceedings. If the charges in the
notice are dismissed, the Company shall (i) pay the Executive all compensation
withheld while its obligations under this Agreement were suspended, and (ii)
reinstate all obligations under this Agreement that were suspended.
(k) Authorization. The Company represents and warrants that it is duly
-------------
authorized to execute and enter into this Agreement.
(l) Reimbursement of Legal Costs. The Company (or any successor thereto)
----------------------------
shall pay to the Executive all reasonable legal fees and expenses incurred by
the Executive after a Change in Control as a result of or in connection with a
bona fide dispute regarding the application of any provision of this Agreement
that arises after a Change in Control, including, without limitation, all such
fees and expenses, if any, incurred (i) in disputing any termination under
Section 6, or (ii) in seeking to enforce or obtain any right or benefit provided
by this Agreement; provided, however, that the Company (or any successor
thereto) shall only be obligated to make payments under this Section 11(l) for
legal fees and expenses incurred by the Executive in connection with or as a
result of any such bona fide dispute regarding which the Executive has obtained
a final, nonappealable decision or determination in his favor (a "Final
Determination"). Any payments pursuant to this Section 11(l) shall be made only
if a Final Determination has been rendered and shall be made within five (5)
business days after delivery of the
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Executive's respective written requests for payment accompanied by such evidence
of fees and expenses incurred as the Company (or any successor thereto)
reasonably may require.
-- end of page --
[signatures appear on the following page]
IN WITNESS WHEREOF, the parties have executed and entered into this
Agreement effective as of the date set forth above.
PREMIER NATIONAL BANK
By: /s/ X. X. Xxxxxxxxxx III
------------------------
Name: X. X. Xxxxxxxxxx III
Title: Chairman
/s/ Xxx X. Xxxx
---------------------------------
Executive: Xxx X. Lucy
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