EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of the 17th day of January, 2002, by and
between F.N.B. Corporation, a Florida corporation (the "Company"), and THOMAS
FAHEY (the "Executive").
W I T N E S S E T H:
--------------------
WHEREAS, the Board of Directors of the Company, recognizing the
experience and knowledge of Executive in the banking industry, desires to retain
the valuable services and business counsel of Executive, it being in the best
interest of the Company to arrange terms of employment for Executive so as to
reasonably induce Executive to accept employment with the Company for the term
hereof; and
WHEREAS, Executive is willing to provide services to the Company, in
accordance with the terms and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the mutual premises and
covenants herein contained, the parties hereto agree as follows:
Section 1. Term of Employment.
-------------------
(a) The term of employment of the Executive under this Agreement shall
be, initially, the three-year period commencing on July 1, 2002 and ending on
June 30, 2005. Said term shall be subject to automatic extension by operation of
the provisions of Section 1(b) hereof to a date not later than June 30, 2008
(beyond which the term of employment shall not be extended pursuant to Section
1(b) hereof).
(b) At June 30, 2003, and June 30 of each succeeding calendar year to
and including June 30, 2005, the term of employment of the Executive under this
Agreement shall be automatically extended to June 30 of the third calendar year
thereafter unless either party, acting under this Section 1(b), shall have
elected to fix the expiration date of the Executive's term of employment
hereunder. Each of the parties shall have the right, exercisable by written
notice to the other, to terminate the automatic renewal and thereby fix the
expiration of the term of employment under this Section 1. Notice of termination
of automatic renewal having been given as aforesaid, the term of employment of
the Executive under this Section 1 shall continue until June 30 of the third
calendar year after the year in which such notice is so given. Said term shall
not continue after
June 30, 2008 whether or not such notice shall have been given in the year 2005
as aforesaid.
Section 2. Services to be Rendered.
------------------------
The Company hereby agrees to employ the Executive as Executive Vice
President and Chief Financial Officer to serve at its headquarters office
located in the Naples, Florida area, subject to the terms, conditions and
provisions of this Agreement. The Executive hereby accepts such employment and
agrees to serve without additional compensation, if elected, in any other senior
executive position of the Company reasonably requested of him and as an officer
and/or director of any subsidiary of the Company in accordance with Section 7
hereof. The Executive shall devote his full-time best efforts to such employment
and shall apply substantially that degree of skill and diligence in rendering
services to the Company and its subsidiaries under this Agreement as would be
applied by a person of ordinary prudence and comparable experience under similar
circumstances. In connection therewith, the Executive shall report to and be
subject to the direction of the President and CEO and the Board of Directors.
Notwithstanding the foregoing, the Executive may devote a reasonable amount of
his time to his personal investments and business affairs (including service as
a director of unaffiliated companies) and to civic and charitable activities;
provided, however, the Executive shall not accept any position as a director of
any unaffiliated for-profit business organization without advance approval of
the Company's Board of Directors (which approval shall not be unreasonably
withheld).
Section 3. Compensation.
-------------
In consideration for services rendered to the Company under this
Agreement (but excluding any directors' fees payable to the Executive), the
Company shall pay and provide to the Executive the following compensation and
benefits.
(a) Salary. The Company shall pay the Executive a minimum base salary
at the rate of $265,000 per year during the term hereof, to be paid in
accordance with the Company's normal payroll practice, with such minimum base
salary to be adjusted from time to time to reflect (i) such merit increases as
the Board of Directors of the Company may determine are appropriate and (ii)
annual cost of living increases commensurate with those given other key
executive officers of F.N.B. Corporation. The stated minimum base salary, as the
same may be adjusted, shall be and remain in effect during the term of
employment established by Section 1(a) as the same may be extended pursuant to
Section 1(b) hereof.
(b) Working Facilities. The Executive shall have such
-------------------
assistants, perquisites, facilities and services as are suitable
to his position and appropriate for the performance of his
duties, including a membership at a country club approved by the CEO (including
dues, assessments and initiation fees).
(c) Expenses. The Executive may incur reasonable expenses for promoting
the business of the Company, including expenses for entertainment, travel, and
similar items. The Executive will be reimbursed for all such expenses upon the
Executive's periodic presentation of an itemized account of such expenditures.
(d) Vacations. The Executive shall be entitled each year to five (5)
weeks vacation, during which time Executive's compensation shall be paid in
full.
(e) Executive Incentive Compensation Plan. Each year in which the
Company meets or exceeds its performance plan, Executive shall be entitled to
receive a cash bonus of approximately 45% of Executive's current minimum annual
base salary. The Compensation Committee of the Board of Directors of the Company
shall determine the precise amount of such bonus.
(f) Additional Benefits. As additional consideration paid to Executive,
the Executive shall be provided with health, dental, long term disability,
hospitalization, life insurance and 401(k) F.N.B. Salary Savings Plan, as
amended from time to time. In addition, the Company will purchase or lease an
appropriate vehicle agreeable to the Executive for the Executive=s use in
business and personal travel. The Company will secure appropriate liability
insurance on the vehicle and pay all normal and reasonable operating expenses
associated with the use of the vehicle.
The Executive will report personal use of the vehicle each year in compliance
with Internal Revenue Service requirements and will be liable for personal use
costs.
(g) Additional Compensation. The Executive and the Company
------------------------
acknowledge that Executive will receive 14,000 incentive stock
options when approved by the Compensation Committee at its July
2002 meeting.
Section 4. Confidentiality.
----------------
For purposes of this Agreement, "proprietary information" shall mean
any information relating to the business of the Company or its subsidiaries that
has not previously been publicly released and shall include (but shall not be
limited to) Company information encompassed in all marketing and business plans,
financial information, costs, pricing information, and all methods, concepts, or
ideas related to the business of the Company or its subsidiaries and not in the
public domain.
The Executive agrees to regard and preserve as confidential
all proprietary information that has been or may be developed or
obtained by the Executive in the course of his employment with the Company and
its subsidiaries, whether he has such information in his memory or in writing or
other physical form. The Executive shall not, without written authorization from
the Company to do so, use for his benefit or purposes, nor disclose to others,
either during the term of his employment hereunder or thereafter, except as
required by the conditions of his employment hereunder, any proprietary
information connected with the business or development of the Company or its
subsidiaries. This prohibition shall not apply after the proprietary information
has been disclosed to the public.
Section 5. Removal of Documents or Objects.
--------------------------------
The Executive agrees not to remove from the premises of the Company,
except as an employee of the Company in pursuit of the business of the Company
or any of its subsidiaries or affiliates, or except as specifically permitted in
writing by the Company, any document or object containing or reflecting any
proprietary information. The Executive recognizes that all such documents and
objects, whether developed by him or by someone else, are the exclusive property
of the Company.
Section 6. Injunctive Relief.
------------------
It is understood and agreed by and among the parties hereto that the
services to be rendered by the Executive hereunder are of a special, unique,
extraordinary and intellectual character, which gives them a peculiar value, the
loss of which may not be reasonably or adequately compensated in damages, and
additionally that a breach by the Executive of the covenants set out in Sections
4, 5 and 10 of this Agreement will cause the Company great and irreparable
injury and damage. The Executive hereby expressly agrees that the Company shall
be entitled to the remedies of injunction, specific performance and other
equitable relief to prevent a breach of Sections 4, 5 and 10 of this Agreement
by the Executive. This provision shall not, however, be construed as a waiver of
any of the remedies which the Company may have for damages or otherwise.
Section 7. Subsidiaries.
-------------
It is understood and agreed by the parties hereto that, at the election
and direction of the Company's Board of Directors and without modification of
the terms and provisions hereof, the Executive shall also serve as an executive
officer of any one or more subsidiaries of the Company and, when and as so
determined by the Board and any such subsidiary, the rights, duties and
obligations of the Company expressed and implied in this Agreement shall inure
to the benefit of and bind any subsidiary with the same force and effect as
would obtain if the subsidiary were a party hereto jointly and severally with
the Company.
Section 8. Death or Disability.
--------------------
In the event of Executive's death, the Company shall pay to Executive's
designated beneficiary, or, if Executive has failed to designate a beneficiary,
to his estate, an amount equal to the Executive's minimum annual base salary
pursuant to Section 3 hereof. Payment shall be made in twelve equal
installments. Such compensation shall be in lieu of any other benefits provided
hereunder, except that (i) any benefit payable pursuant to Section 3 shall be
prorated and made available to Executive in respect of any period prior to his
death. The Company may maintain insurance on its behalf to satisfy in whole or
in part the obligations of the Section 8.
In the event of Executive's disability, as hereinafter defined, the
Company shall pay to Executive an amount equal to the difference, if any,
between Executive's minimum annual base salary pursuant to Section 3 hereof and
any payments which Executive is entitled to receive under the long-term
disability insurance policy which the Company presently maintains for the
benefit of Executive. Payments by the Company hereunder, if any, shall be made
in equal installments as provided in Section 3 throughout what would otherwise
be the remaining term of employment hereunder.
Executive shall be entitled to the disability benefits provided by this
Section if, by reason of physical or mental impairment, he is incapable of
performing his duties hereunder. Any dispute regarding the existence, the extent
or the continuance of Executive's disability shall be resolved by the
determination of a duly licensed and practicing physician selected by and
mutually agreeable to both the Board of Directors of the Bank and Executive;
provided, however, if Executive officially establishes his eligibility to
receive Social Security Disability benefits or is deemed disabled under the
terms and conditions of the disability insurance policy carried on the Executive
by the Company, he shall be deemed to be disabled as provided herein without
further proof. Executive shall make himself available for and submit to such
examinations by said physician as may be directed from time to time by the
physician. Failure to submit to any such examination shall constitute a material
breach of this Agreement.
Section 9. Termination.
------------
(a) Proper Cause. The occurrence of any of the following
-------------
events or circumstances shall constitute "proper cause" for
termination, at the election of the Board of Directors of the
Company, of the term of employment of the Executive under this
Agreement, to wit:
-------
(i) the Executive shall voluntarily resign as a director,
officer or employee of the Company or any significant subsidiary without
approval of the Board of Directors of the
Company for reasons other than a breach of this Agreement in any material
respect by the Company which has not been cured within 30 calendar days after
the Company's receipt of written notice of such breach from the Executive;
(ii) the perpetration of defalcations by the Executive
involving the Company or any of its affiliates, as established by certified
public accountants employed by the Company, or willful, reckless or grossly
negligent conduct of the Executive entailing a substantial violation of any
material provision of the laws, rules, regulations or orders of any governmental
agency applicable to the Company or its subsidiaries;
(iii) the repeated and deliberate failure by the Executive,
after advance written notice to him, to comply with reasonable policies or
directives of the Board of Directors;
(iv) the Executive shall breach this Agreement in any other
material respect and fails to cure such breach within 30 calendar days after the
Executive receives written notice of such breach from the Company; or
(v) receipt by the Company of written notice from the Federal
Reserve Bank that it has criticized Executive's performance and has either (a)
rated the Company a "4" or a "5" under the Uniform Financial Institution Rating
System or (b) has determined that the Bank is in a "troubled condition" as
defined under Section 914 of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989;
provided, however the inability of the Executive to achieve favorable results of
operations for reasons essentially unrelated to the events or circumstances
described in paragraph (a)i, (a)ii, (a)iii, (a)iv and (a)v hereof shall not be
deemed to constitute proper cause for termination hereunder.
In the event that the Company discharges Executive alleging "cause"
under this Section 9(a) and it is subsequently determined judicially that the
termination was "without cause," then such discharge shall be deemed a discharge
without cause subject to the provisions of Section 9(b) hereof. In the event
that the Company discharges Executive alleging "cause" under this Section 9(a),
such notice of discharge shall be accompanied by a written description of the
circumstances alleging such "cause." The termination of Executive for "cause"
shall not entitle the Company to enforcement of the non-competition and non-
solicitation covenants contained in Section 10 hereof.
(b) Without Cause. The Company may, upon sixty (60) days' written
notice to Executive, terminate this Agreement without cause at any time during
the term of this Agreement.
In the event Company terminates this Agreement without cause:
(1) Executive shall not be considered an employee
after the effective date of the termination.
(2) Company shall pay to Executive his base salary at
the time of termination for the remaining term of
the Agreement as set forth in Section 1.
("Separation Pay").
(3) Company shall pay Executive the Separation Pay in
equal bi-weekly installments less all withholdings
required by law and authorized deductions.
(4) Executive will not be entitled to receive any
benefits described in Section 3 hereof, except that
Executive shall be paid a cash bonus for his
performance in the year in which his employment is
terminated, provided that his job was terminated due
to a change in control. A change in control shall be
deemed to occur if in the event of a merger or
consolidation of the Company with another
corporation, the shareholders of the Company as of
the day preceding such transaction will own less than
51% of the outstanding voting securities of the
surviving corporation, or in the event that there is
(in a single transaction or series of related
transactions) a sale or exchange of 80% or more of
the Common Stock of the Company for securities of
another entity in which shareholders of the Company
will own less than 51% of such entity's outstanding
voting securities, or in the event of the sale by the
Company of a substantial portion of its assets to an
unrelated third party. The amount of any bonus paid
pursuant to this Section 9(b)(4) shall be equal to
the bonus payable under Section 3(e) and pro-rated
for the number of months that the Executive worked in
the year of termination.
(5) Executive will be entitled to receive such Separation
Pay only if the Executive executes and does not
revoke a Release of all claims and liabilities in
form prescribed by Company.
(6) Following termination without cause, Executive is
entitled to elect insurance coverage under the
Consolidated Omnibus Budget Reconciliation Act
(COBRA) for a period of up to eighteen (18) months
following Executive's termination, and Company shall
be obligated to pay on behalf of Executive the
monthly premium cost for Executive's health/medical
coverage under COBRA, less the same contribution as
required by employee's group life and health
insurance coverages pursuant to the prevailing
policies and practices of the Company
(now and in the future) with respect to similarly
positioned executives of the Company or its present
or future subsidiaries or affiliates.
(7) Nothing herein shall restrict the Executive's vested
rights, if any, pursuant to any of Company's Plans in
which Executive was participating prior to
termination. Further, in the event the Executive is
terminated due to a change in control, then
Executive's rights pursuant to any such plans shall
vest in accordance with the terms of said plans.
(8) Executive shall continue to comply with all
applicable terms of this Agreement. Payments
hereunder may be suspended for breach of Agreement or
terminated if the Executive shall breach this
Agreement in any material respects and fails to cure
such breach within 30 calendar days after the
Executive receives written notice of such breach from
the Company.
Section 10. Non-Competition and Non-Solicitation.
-------------------------------------
(a) Executive acknowledges that he has performed services or will
perform services hereunder which directly affect the Company's business.
Accordingly, the parties deem it necessary to enter into the protective
agreement set forth below, the terms and condition of which have been negotiated
by and between the parties hereto.
(b) In the event of termination of employment under this Agreement by
action of Executive prior to the expiration of the term of this Agreement,
Executive agrees with the Company that through the actual date of termination of
the Agreement, and for a period of two (2) years after such termination date:
(i) Executive shall not, without the prior written consent of
the Company in any county in which the Company or any of its subsidiaries
operates, serve as an employee, consultant or advisor of any bank, bank holding
company or other financial institution; and
(ii) Executive shall not employ or attempt to employ or assist
in employing any present employee of the Company or any of its subsidiaries
(whether or not such employment is full time or is pursuant to a written
contract), for the purpose of having such employee perform services for any bank
or other business or organization in competition with the business of the
Company and any of its subsidiaries as such exists on the termination date of
Executive's employment hereunder.
(c) The covenants of Executive set forth in this Section 10
are separate and independent covenants for which valuable
consideration has been paid, the receipt, adequacy and sufficiency of which are
acknowledged by Executive, and have also been made by Executive to induce the
Company to enter into this Agreement. Each of the aforesaid covenants may be
availed of or relied upon by the Company in any court of competent jurisdiction,
and shall form the basis of injunctive relief and damages including expenses of
litigation (including but not limited to reasonable attorney's fees) suffered by
the Company arising out of any breach of the aforesaid covenants by Executive.
The covenants of Executive set forth in this Section 10 are cumulative to each
other and to all other covenants of Executive in favor of the Company contained
in this agreement and shall survive the termination of this Agreement for the
purposes intended. Should any covenant, term or condition contained in this
Section 10 become or be declared invalid or unenforceable by a court of
competent jurisdiction, then the parties may request that such court judicially
modify such unenforceable provision consistent with the intent of this Section
10 so that it shall be enforceable as modified, and in any event the invalidity
of any provision of this Section 10 shall not affect the validity of any other
provision in this Section 10 or elsewhere in this Agreement.
Section 11. Waiver of Breach.
-----------------
The waiver by the Company of a breach of any provision of this
Agreement by the Executive shall not operate or be construed as a waiver of any
subsequent breach by the Executive. No waiver shall be valid unless in writing
and signed by an authorized officer of the Company.
Section 12. Governmental Regulation.
------------------------
In the event that any payment, coverage or benefit provided under this
Agreement would, in the opinion of counsel for the Company, not be deemed to be
deductible in whole or in part in the calculation of the Federal income tax of
the Company, or any other person making such payment or providing such coverage
or benefit, by reason of Section 280G of the Code, the aggregate payments,
coverages or benefits provided hereunder shall be reduced to the "safe harbour"
level under Section 280G so that no portion of such amount which is paid to the
Executive is not deductible by reason of Section 280G of the Code.
Furthermore, the Company shall hold such portions not paid to the
Executive in escrow pending a final determination of whether such amounts would
be deductible if paid to the Executive and the Company shall use its best
efforts to seek a ruling from the Internal Revenue Service that any portion of
such payments, coverages or benefits not paid to the Executive pursuant to this
Section 12 would continue to be deductible if paid to the Executive and the
Company shall pay to the Executive any portion of such amounts for which such a
ruling is received. In the event the IRS will not rule on such matter, the
Company shall pay
to the Executive such amounts maintained in escrow pursuant to this Section 12
as shall be determined at some point in time by a counsel, selected by the
Company and the Executive, is likely to be deductible if paid to the Executive
or shall be forfeited by the Executive in the event of a final determination by
the IRS that such amounts are not deductible. For purposes of this Section, the
value of any non-cash benefit or coverage or any deferred or contingent payment
or benefit shall be determined by the independent auditors of the Company in
accordance with the principles of Section 280G of the Code.
Section 13. Arbitration.
------------
Any dispute or controversy as to the validity, interpretation,
construction, application or enforcement of, or otherwise arising under or in
connection with this Agreement, shall be submitted at the request of either
party hereto for resolution and settlement through arbitration in Tampa, Florida
in accordance with the rules then prevailing of the American Arbitration
Association. Any award rendered therein shall be final and binding on each of
the parties hereto and their heirs, executors, administrators, successors and
assigns, and judgment may be entered thereon in any court having jurisdiction.
The foregoing provisions of this Section 13 shall not be deemed to limit the
rights and remedies reserved to the Company under and pursuant to Section 6
hereof.
Section 14. Notices.
--------
All notices and other communications which are required or may be given
under this Agreement shall be in writing and shall be deemed to have been given
if delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed as follows:
(a) To the Company: F.N.B. Corporation
2150 Goodlette Road North
Box 502
Naples, FL 34102
(b) To the Executive: Mr. Thomas Fahey
2 Larch Lane
Larchmont, NY 10538
or to such other place as either party shall have specified by notice in writing
to the other. A copy of any notice or other communication given under this
Agreement shall also be sent to the Board of Directors of the Company at the
then principal Florida office of the Company.
Section 15. Successors, Assigns, Etc.
-------------------------
This Agreement shall be binding upon, and shall inure to the benefit
of, the Executive and the Company and their respective permitted successors,
assigns, heirs, legal representatives and beneficiaries.
Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge or hypothecation or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect; provided, however, that nothing in this Section 15 shall
preclude the assumption of such rights by executors, administrators or other
legal representatives of the Executive or his estate and their assigning any
rights hereunder to the person or persons entitled thereto.
Nothing in this agreement shall preclude the Company from consolidating
or merging into or with, or transferring all or substantially all of its assets
to, another corporation which assumes this Agreement and all obligations and
undertakings of the Company hereunder. Upon such a consolidation, merger or
transfer of assets and assumption, the term "Company", as used herein, shall
mean such other corporation and this Agreement shall continue in full force and
effect.
Section 16. Governing Law.
--------------
This Agreement shall be governed and construed in accordance with the
laws of the State of Florida.
Section 17. Divisibility.
-------------
Should a court or arbitrator declare any provision hereof to be
invalid, such declaration shall not affect the validity of the Agreement as a
whole or any part thereof, other than the specific portion declared to be
invalid.
Section 18. Headings.
---------
The headings to the Sections and paragraphs hereof are placed herein
for convenience of reference only and in case of any conflict the text of this
Agreement, rather than the headings, shall control.
Section 19. Entire Agreement; Amendment.
----------------------------
This Agreement sets forth the entire understanding of the parties in
respect of the subject matter contained herein and supersedes all prior
agreements, arrangements and understandings relating to the subject matter and
may only be amended by a
written agreement signed by both parties hereto or their duly authorized
representatives.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Witness: Executive:
/s/Robert Schirling /s/Thomas Fahey
- ----------------------------- -----------------------------
Thomas Fahey
Attest: F.N.B. Corporation
/s/William J. Rundorff By:/s/Gary L. Tice
- ----------------------------- -----------------------------
Asst. Secretary Gary L. Tice
(SEAL) President and CEO