EXHIBIT 10.6
EMPLOYMENT AGREEMENT
THIS AGREEMENT effective as of July 1, 1995 ("Effective Date") and as
amended January 9, 1997 and as further amended December 16, 1999 ("Amended
Date") by and between Premier National Bancorp, Inc. (the "Company"), Premier
National Bank (the "Bank") and Xxxx X. XxxXxxxxx (the "Employee"); and,
WHEREAS, the Employee has heretofore been employed by the Bank and the
Company as their President and is experienced in all phases of the business of
the Bank and the Company; and,
WHEREAS, the parties desire by this writing to set forth the continuing
employment relationship of the Bank, the Company and the Employee.
NOW, THEREFORE, it is AGREED as follows:
1. EMPLOYMENT. The Employee is employed as the President of the Bank
and as the President of the Company in the capacity of its Chief Banking
Officer. The Employee shall render such administrative and management services
for the Bank and the Company as are customarily performed by persons similarly
situated. The Employee's duties shall be such as the Board of Directors of the
Bank or the Company and/or CEO of the Bank or the Company may from time to time
reasonably direct, including normal duties as an officer of the Bank and of the
Company. The Employee shall also promote, by entertainment or otherwise as and
to the extent permitted by law, the business of the Bank and the Company.
2. BASE COMPENSATION. The Bank agrees to pay the Employee, beginning as
of the July 1, 1999 date, a salary at the rate of $235,000 per annum, payable in
cash not less frequently than monthly. In lieu of paying the Employee a base
salary during the term of the Agreement, the Company agrees that to the extent
permitted by law, it shall be jointly and severally liable with the Bank for the
payment of all amounts due thereunder. The Board of Directors of the Company may
nevertheless at any time agree to pay the Employee, during the remaining term of
this Agreement, a salary for his services rendered for the Company. The Board of
Directors of the Bank and of the Company shall have the discretion to increase
the Employee's salary at any time and from time to time. Any such increase shall
reflect the Employee's contribution to the financial and business performance of
the Company and the Bank during the preceding period.
3. DISCRETIONARY BONUSES. The Employee shall participate in any
equitable manner with all other senior management employees of the Bank and/or
the Company in discretionary bonuses that their respective Board of Directors
may award from time to time to its senior management employees. No other
compensation provided for in this Agreement shall be deemed a substitute for the
Employee's right to participate in such discretionary bonuses.
4 (a) PARTICIPATION IN RETIREMENT, MEDICAL AND OTHER PLANS. Blue
Cross/Blue Shield medical insurance coverage, including major medical insurance
coverage, or similar insurance coverage provided by another insurance company,
shall be maintained for the Employee and his dependents. In addition, the
Employee shall participate in any plan that the Bank or the Company maintains
generally for the benefit of its employees if the plan relates to (i) pension,
profit sharing or other retirement benefits, (ii) medical insurance or the
reimbursement of medical or dependent care expenses, or (iii) other group
benefits, including disability and life insurance plans. The Employee's
participation in each such plan or program shall be in accordance with the terms
and provisions thereof as generally applicable to all participants.
(b) EMPLOYEE BENEFITS: EXPENSES. The Employee shall
participate in any fringe benefits which are approved by the Board of Directors,
including, for example: any stock option or incentive compensation plans,
deferred compensation plans, club memberships and any other benefits which are
commensurate with the responsibilities and functions to be performed by the
Employee under this Agreement. The Employee shall be reimbursed for all
reasonable out of pocket expenses which he shall incur in connection with his
services under this Agreement upon substantiation of such expenses in accordance
with the policies of the Bank and/or the Company.
5. TERM. The Bank and the Company shall employ the Employee, and the
Employee accepts such employment, for the period commencing on July 1, 1995
("Employment Date") and ending thirty six months thereafter (or such earlier
date as is determined in accordance with Section 11). On each annual anniversary
date from the Employment Date, the Employee's term of employment shall be
extended for a one year period beyond the then effective expiration date, unless
the Bank or the Company provides written notice to the Employee prior to such
anniversary date advising the Employee that this Agreement shall not be further
extended. Any such extension shall be subject to the consent of the Employee,
which shall be presumed to be received unless the Employee provides the Company
or the Bank with written notice on the contrary.
6. The Employee shall be eligible to participate in and benefit from a
supplemental retirement program ("SRP") as described in this section. The SRP
shall provide supplemental retirement and tax deferral benefits to the extent
benefits under the Premier National Bancorp, Inc. Retirement and Thrift Plan or
any other similar qualified plan maintained by the Company (the "Plan") are
limited by provisions of the Internal Revenue Code, ERISA or any other
applicable law or regulation (the "Limitations").
The SRP shall provide to the Employee an annual profit sharing
contribution equal to the excess of the amount that would have been contributed
for the Employee under the Plan, absent the Limitations, over the amount
actually contributed to the Plans. The SRP will also permit the Employee to
defer from his eligible compensation, as defined in the Plan, a dollar amount
equal to the excess he could have deferred under the 401(k) feature of the Plan,
absent the Limitations, over the amount he actually deferred under that plan,
provided however that the Employee has deferred the maximum amount permitted by
the Limitations. The SRP will also provide, with respect to the supplemental
deferral described in the previous sentence, a matching contribution equal to
the matching contribution that the Plan would have provided if the supplemental
deferral had been made into the 401(k) feature of the Plan.
The SRP shall be an account maintained on the books of the
Employer on behalf of the Employee which shall include each of the amounts
described in the preceding paragraph for each year of employment under this
Agreement. Each of such amounts shall be recorded in the SRP at the same time it
would have been paid or credited to the Employee's accounts under the Plan. The
Employee's account under the SRP shall be credited with earnings equal to the
Chase Bank prime rate in effect from time to time, at the same time that
earnings would be credited under the Plan. Although the SRP is a bookkeeping
account maintained by the Employer to record its supplemental retirement
liability to the Employee, the Employer may create a reserve or a fund to cover
some or all of such liability. However, any such reserve or fund shall at all
times be subject to the claims of creditors of the Employer. Benefits under the
SRP shall be paid solely from the general assets of the Employer and the
Employee shall be a general unsecured creditor of the Employer with respect to
the Employer's liability to the Employee under the SRP.
Benefits under the SRP shall be fully vested at all times and
shall be paid to the Employee in the same manner and at the same time as
benefits shall be paid to the Employee from the Plan.
7. LOYALTY: NONCOMPETITION.
(a) During the period of his employment thereunder and except
for illnesses, reasonable vacation periods and reasonable leaves of absence, the
Employee shall devote all his full business time, attention, skill and efforts
to the faithful performance of his duties thereunder, provided, however, from
time to time, Employee may serve on boards of directors of and hold any other
offices or positions in companies or organizations which will not present any
conflict of interest with the Company or the Bank or any of their subsidiaries
or affiliates or unfavorably affect the performance of Employee's duties
pursuant to this Agreement or will not violate any applicable statute or
regulation. "Full business time" is hereby defined by the fact that the Employee
cannot be gainfully employed in any other position or job, but the time devoted
to the Company and the Bank shall be that amount of time usually devoted to like
companies by similarly situated executive officers. During the term of his
employment under this Agreement, the Employee shall not engage in any business
or activity contrary to or conflicting with the business affairs or interests of
the Bank or the Company or any of their subsidiaries or affiliates.
(b) Nothing contained in this Paragraph 7 shall be deemed to
prevent or limit the Employee's right to invest in the capital stock or other
securities of any business dissimilar from that of the Bank and the Company, or
solely as a passive or minority investor in any business.
8. STANDARDS. The Employee shall perform his duties under this
Agreement in accordance with such reasonable standards as the CEO of the Company
or the Bank or the Board of Directors of the Bank and/or of the Company may
establish from time to time ("Performance Standards"). The Bank will provide the
Employee with the working facilities and staff customary for similar executives
and necessary for him to perform his duties.
9. VACATION AND SICK LEAVE. At such reasonable times as the Board of
Directors of the Bank and/or the Company shall in its discretion permit, the
Employee shall be entitled, without loss of pay, to absent himself voluntarily
from the performance of his employment under this Agreement, all such voluntary
absences to count as vacation time, provided that:
(a) The Employee shall be entitled to an annual vacation of
not less than four weeks in accordance with the policies that the Board of
Directors of the Bank and/or the Company periodically establishes for senior
management employees of the Bank or the Company.
(b) The Employee shall not receive any additional compensation
from the Bank or the Company on account of his failure to take a vacation and
the Employee shall not accumulate unused vacation from one fiscal year to the
next, except in accordance with the policies that the Board of Directors of the
Bank and/or the Company periodically establish for the employees of the Bank or
the Company.
(c) The Board of Directors of the Bank or the Company may
grant to the Employee a leave or leaves of absence, with or without pay, at such
time or times and upon such terms and conditions as such Board of Directors in
its discretion may determine.
(d) In addition, the Employee shall be entitled to an annual
sick leave benefit as established by the Board of Directors of the Bank or the
Company.
10. TERMINATION AND TERMINATION PAY. Subject to Section 12 hereof, the
Employee's employment thereunder may be terminated under the following
circumstances:
(a) DEATH. The Employee's employment under this Agreement
shall terminate upon his death during the term of this Agreement, in which event
the Employee's estate shall be entitled to receive the salary provided pursuant
to Section 2 hereof through the last day of the calendar month in which his
death occurred.
(b) JUST CAUSE. The Board of Directors of the Bank or the
Company may, by written notice to the Employee, immediately terminate his
employment at any time for Just Cause. The Employee shall have no right to
receive compensation or other benefits for any period after termination for Just
Cause. Termination for "Just Cause" shall mean termination because of, in the
good faith determination of the Company's or the Bank's Board of Directors, the
Employee's personal dishonesty, incompetence, willful misconduct, breach of
fiduciary duty involving personal profit, intentional failure to perform stated
duties, consistent failure to meet Performance Standards (after notice to the
Employee), willful violation of any law, rule, regulation (other than traffic
violations or similar offenses) or final cease and desist order or material
breach of any provision of this Agreement. Notwithstanding the foregoing, the
Employee shall not be deemed to have been terminated for Just Cause unless there
shall have been delivered to the Employee a copy of a resolution duly adopted by
the affirmative vote of not less than a majority of the entire membership of the
Board of Directors of the Bank or the Company at a meeting of the Board called
and held for the purpose (after reasonable notice to the Employee and an
opportunity for the Employee to be heard before the Board), finding that in the
good faith opinion of the Board, the Employee was guilty of conduct set forth
above in the third sentence of this Subsection (b) and specifying the
particulars thereof in detail.
(c) WITHOUT JUST CAUSE. Subject to Section 12 hereof, the
Board of Directors of the Bank or the Company may, by written notice to the
Employee, immediately terminate his employment at any time for reason other than
Just Cause, in which event the Employee shall be entitled to receive salary
provided pursuant to Section 2 hereof, up to the date of termination of the term
of this Agreement (including any renewal term of this Agreement previously
agreed to by the Board of Directors) plus he shall be paid salary for an
additional 12 month period. Said sum shall be paid, at the request of the
Employee, with the consent of the Board of the Company, either (i) in periodic
payments over the reamining term of this Agreement, as if the Employee's
employment had not been terminated or (ii) in one lump sum within 10 days of
such termination. In addition, the Company or the Bank shall provide, at no cost
to the Employee, medical and life insurance benefits comparable to those
provided by the Company to employees of similar position for a period of 24
months following the date such coverage would otherwise have expired due to the
termination.
(d) TERMINATION OR SUPERVISION UNDER FEDERAL LAW.
(1) If the Employee is removed and/or permanently
prohibited from participating in the conduct of the Bank's affairs by an
order issued under Sections 8(e)(4) or 8(g)(1) of the Federal Deposit
Insurance Act ("FDIA") (12 U.S.C. 1818(e)(4) and (g)(1)), all obligations of
the Company and the Bank under this Agreement shall terminate as of the
effective date of the order, but vested rights of the parties shall not be
affected.
(2) If the Bank is in default (as defined in Section
3(x)(1) of FDIA), all obligations of the parties under this Agreement shall
terminate as of the date of default, but this Section 8(e)(2) shall not affect
any vested rights of the parties.
(3) If a notice served under Section 8(e)(3) or
(g)(1) of the FDIA (12 U.S.C. 1818(e)(3) and (g)(1)) suspends and/or temporarily
prohibits the Employee from participating in the conduct of the Bank's affairs,
the Bank's and the Company's obligations under this Agreement shall be suspended
as of the date of such service, unless stayed by appropriate proceedings. If the
charges in the notice are dismissed, the Bank may (i) pay the Employee all or
part of the compensation withheld while its contract obligations were suspended
and (ii) reinstate (in whole or in part) any of its obligations which were
suspended.
(e) VOLUNARY TERMINATION BY EMPLOYEE. Subject to Section 12
hereof, the Employee may voluntarily terminate employment with the Bank and the
Company during the term of this Agreement, upon at least 60 days prior written
notice to each of their Board of Directors, in which case the Employee shall
receive only his compensation and vested rights in the employee benefits up to
the date of his termination.
11. NO MITIGATION. The Employee shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other
employment, or otherwise, and no such payment shall be offset or reduced by the
amount of any compensation or benefits provided to the employee in any
subsequent employment.
12. CHANGE IN CONTROL.
(a) Nothwithstanding any provision herein to the contrary, if
the Employee's employment under this Agreement is terminated by the Company or
the Bank, without the Employee's prior written consent and for a reason other
than Just Cause, in connection with or within 12 months after any change in
control of the Bank or the Company, the Employee shall receive the compensation
and benefits as set out in Section 10(c) subject to the limitation that he shall
not be eligible to receive any compensation in excess of an amount equal to the
difference between (i) the product of 2.99 times his "base amount" as defined in
Section 280G(b)(3) of the Internal Revenue Code of 1986 as amended (the "Code")
and regulations promulgated thereunder and (ii) the sum of any other parachute
payments as defined under Section 280G(b)(2) of the Code that the Employee
receives on account of the change in control. Said sum shall be paid in one lump
sum within 10 days after such termination.
The term "change in control" shall mean (1) the ownership,
holding or power to vote more than 25% of the Bank's or Company's voting stock,
(2) the control of the election of a majority of the Bank's or Company's
directors, (3) the exercise of a controlling influence over the management or
policies of the Bank or the Company by any person or by persons acting as a
"group" within the meaning of Section 13(d) of the Securities Exchange Act of
1934 (except in the case of (1), (2) and (3) hereof, ownership or control of the
Bank or its Directors by the Company itself shall not constitute a "change in
control") and (4) during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board of Directors of the Company or
the Bank (the "Continuing Directors") cease for any reason to constitute at
least two thirds thereof, provided that any individual whose election or
nomination for election as a member of either of such boards was approved by a
vote of at least two thirds of the Continuing Directors then in office shall be
considered a Continuing Director. The term "person" means an individual other
than the Employee, or a corporation, partnership, trust, association, joint
venture, pool, syndicate, sole proprietorship, unincorporated organization or
any other form of entity not specifically listed herein.
(b) Notwithstanding any other provision of this Agreement to
the contrary, the Employee may voluntarily terminate his employment under this
Agreement within 12 months following a change in control of the Bank or the
Company and the Employee shall thereupon be entitled to receive the payment
described in Section 12a of this Agreement upon the occurrence of any of the
following events, which have not been consented to within 90 days thereafter by
the Employee in writing: (i) the requirement that the Employee perform his
principal executive functions, more than 35 miles from his primary office as of
the Effective Date of this Agreement; (ii) a reduction in the Employee's base
compensation as in effect on the Effective Date of this Agreement, or as the
same may have been increased from time to time; (iii) the failure by the Bank or
the Company to continue to provide the Employee with compensation and benefits
provided for the Employee under the terms of this Agreement, or the taking of
any action by the Company or the Bank which would directly or indirectly reduce
any such benefits or deprive the Employee of any material fringe benefit enjoyed
by him at the time of the change in control; (iv) the assignment to the Employee
of material duties and responsbilities other than those normally associated with
his position as referenced at Section 1; (v) a failure to elect or reelect the
Employee to the Board of Directors of the Bank or the Company; or, (vi) a
material diminution or reduction in the Employee's responsibilities or authority
(including reporting responsibilities) in connection with his employment with
the Bank or the Company.
(c) In the event that any dispute arises between the Employee
and Bank as to the terms or interpretation of this Agreement, including this
Section 12, whether instituted by formal legal proceedings or otherwise,
including any action that the Employee takes to enforce the terms of this
Section 12 or to defend against any action taken by the Bank, the Employee shall
be reimbursed for all costs and expenses, including reasonable attorney's fees,
arising from such dispute, proceedings or actions provided that the Employee
shall obtain a final judgement by a court of competent jurisdiction in favor of
the Employee. Such reimbursement shall be paid within 10 days of Employee's
furnishing to the Bank written evidence, which may be in the form, among other
things, of a canceled check or receipt, of any costs or expenses incurred by the
Employee.
13. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall inure to the benefit of and be
binding upon any corporate or other successor of the Bank or the Company which
shall acquire, directly or indirectly, by merger, consolidation, purchase or
otherwise, all or substantially all of the assets or stock of the Bank or the
Company.
(b) Since the Bank and the Company are contracting for the
unique and personal skills of the Employee, the Employee shall be precluded from
assigning or delegating his rights or duties thereunder without first obtaining
the written consent of the Bank and the Company, such consent to be within the
sole discretion of the Bank and the Company.
14. JOINT AND SEVERAL LIABILITY. To the extent permitted by law, the
Company and the Bank shall be jointly and severally liable for the payment of
all amounts due and shall be jointly and severally entitled to the benefits and
remedies of this Agreement.
15. AMENDMENTS. No amendments or additions to this Agreement shall be
binding unless made in writing and signed by all parties, except as herein
otherwise specifically provided.
16. APPLICABLE LAW. Except to the extent preempted by Federal law, the
laws of the State of New York shall govern this Agreement in all respects,
whether as to its validity, construction, capacity, performance or otherwise.
17. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
effect the validity or enforceability of the other provisions hereof.
18. ENTIRE AGREEMENT. This Agreement, together with any understanding
or modifications hereof as agreed to in writing by the parties, shall constitute
the entire agreement between the parties hereto and shall supersede any prior
agreements between the parties (including, but not limited to, the agreement
dated May 15, 1985, as thereafter amended, between the Employee and the
predecessor of the Bank).
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first hereinabove written.
PREMIER NATIONAL BANCORP, INC.
By: T. Xxxxxxxxx Xxxxxxxxxx III
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Signature
Chairman & CEO
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Title
PREMIER NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. XxxXxxxxx
President & CBO
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Title
