Exhibit 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") dated as of October 10, 2007
between F.N.B. Corporation, a Florida corporation having its principal place of
business at One F.N.B. Boulevard, Hermitage, Pennsylvania 16148 ("Employer"),
and Robert V. New, Jr., an individual whose address is 3315 Georgetown Street,
Houston, Texas 77005 (the "Executive").
WITNESSETH:
WHEREAS, the Employer desires to employ the Executive, and the
Executive desires to be employed by the Employer, all in accordance with the
terms and subject to the conditions set forth in this Agreement; and
WHEREAS, the parties are entering into this Agreement to set forth and
confirm their respective rights and obligations with respect to the Executive's
employment by the Employer;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, the Employer and the Executive, intending
to be legally bound hereby, mutually agree as follows:
1. Employment and Term.
(a) Effective on January 15, 2008 (the "Effective Date"), the
Employer shall employ the Executive, in accordance with the terms and subject to
the conditions set forth in this Agreement for a term that shall commence on the
Effective Date, and, subject to paragraphs 1(b) and 1(c), shall expire on
January 15, 2011 (the "Initial Term") which Initial Term shall be automatically
renewed on each anniversary of the commencement of the Term for successive terms
of three years each so that the term is always three years, as follows: on the
first anniversary of the effective date and on each succeeding anniversary of
the date ("Renewal Commencement Date") the term of employment of the Executive
shall be automatically extended for one (1) additional year (the "Renewal
Extension Term"), thereby extending the contract to the third anniversary of the
Renewal Commencement Date unless either party shall give the other party written
notice of the non-renewal of this Agreement at least 120 days prior to the next
succeeding automatic renewal date, provided that, notwithstanding the foregoing,
the Term shall not automatically renew on or after the date the Executive
attains age 62. The following are offered merely by way of illustration, and
strictly for purposes of providing examples of the operation of the Initial Term
and Renewal Extension Term of this Agreement. Example of Initial Term. In the
event the Commencement Date is January 15, 2008, the Initial Term is January 15,
2008, to January 15,
2011; Example of Renewal Extension Term. The Renewal Extension Term of this
Agreement will automatically renew for an additional one (1) year on January 15,
2009, and on each January 15th thereafter for an additional one (1) year;
therefore, on January 15, 2009, the Renewal Extension Term runs from January 15,
2009, to January 15, 2012. Example of Non-Renewal. In the event written notice
of non-renewal is provided to the Executive prior to September 15, 2008 (or any
September 15th thereafter), the term of this Agreement will end on January 15,
2011 (or any January 15th thereafter). The Executive shall be President and
CEO-elect of the Employer (the "Initial Position") commencing with the Effective
Date and continuing until the earlier of (i) April 1, 2008 or (ii) the date of
retirement of Stephen J. Gurgovits as President and Chief Executive Officer of
the Employer. Upon the earlier of (i) April 1, 2008 or (ii) the date of the
retirement of Stephen J. Gurgovits as President and Chief Executive Officer of
the Employer, the Executive shall become President and Chief Executive Officer
of the Employer (the "Position") and, subject to paragraphs 1(b) and 1(c), shall
continue to serve in the Position for the remainder of the Term.
(b) Notwithstanding paragraph 1(a), the Employer, by action of
its Board of Directors (the "Board") and effective as specified in a written
notice to the Executive in accordance with the terms of this Agreement, shall
have the right to terminate the Executive's employment under this Agreement at
any time during the Term, for Cause (as defined in this Agreement), for other
than Cause or on account of the Executive's death or Permanent Disability (as
defined in this Agreement), subject to the provisions of this paragraph 1.
(i) As used in this Agreement, "Cause" shall mean (A)
the Executive's willful and continued failure substantially to perform his
material duties with the Employer as set forth in this Agreement, or the
commission by the Executive of any activities constituting a violation or breach
under any material federal, state or local law or regulation applicable to the
activities of the Employer, in each case, after notice thereof from the Employer
to the Executive and a reasonable opportunity for the Executive to cease such
failure, breach or violation in all material respects, (B) fraud, breach of
fiduciary duty, dishonesty, misappropriation or other actions that cause
intentional damage to the property or business of the Employer by the Executive,
(C) the Executive's repeated absences from work such that he is unable to
perform his duties under this Agreement in all material respects other than for
physical or mental impairment or illness, (D) the Executive's admission or
conviction of, or plea of nolo contendere to, any felony or any other crime
referenced in Section 19 of the Federal Deposit Insurance Act that, in the
reasonable judgment of the Board, adversely affects the Employer's reputation or
the Executive's ability to carry out his obligations under this Agreement or (E)
the Executive's non-compliance with the provisions of paragraph 2(b) after
notice thereof from the Employer to the Executive and a reasonable opportunity
for the Executive to cure such non-compliance.
(ii) As used in this Agreement, "Permanent
Disability" shall mean a physical or mental disability such that the Executive
is substantially unable to perform those
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duties that he would otherwise be expected to continue to perform and the
nonperformance of such duties has continued for a period of 180 consecutive
days, provided, however, that in order to terminate the Executive's employment
under this Agreement on account of Permanent Disability, the Employer must
provide the Executive with written notice of the Board's good faith
determination to terminate the Executive's employment under this Agreement for
reason of Permanent Disability not less than 30 days prior to such termination,
which notice shall specify the date of termination. Until the specified
effective date of termination by reason of Permanent Disability, the Executive
shall continue to receive compensation at the rates set forth in paragraph 3. No
termination of the Executive's employment under this Agreement because of
Permanent Disability shall impair any rights of the Executive under any
disability insurance policy maintained by the Employer at the commencement of
the aforesaid 180-day period.
(c) Executive shall have the right to terminate his employment
under this Agreement at any time during the Term for Good Reason or without Good
Reason. As used in this Agreement, "Good Reason" shall mean (A) a material
diminution in the Executive's Base Salary as defined in this Agreement; (B) a
material diminution in the Executive's authority, duties, or responsibilities;
or (C) any other action or inaction that constitutes a material breach by the
Employer of this Agreement. The Executive must provide written notice to the
Employer of the existence of the event or condition described above within
ninety (90) days of the initial occurrence of the event or existence of the
condition alleged to constitute "Good Reason" under this paragraph. Upon such
notice, the Employer shall have a period of thirty (30) days during which it may
remedy the condition.
(d) The Executive shall also have the right to terminate his
employment under this Agreement if the Executive has not commenced service in
the Position by April 1, 2008, provided the employment of the Executive under
this Agreement shall not have theretofore been terminated by the Employer for
Cause or the death or Permanent Disability of the Executive.
(e) Prior to receiving any payment, coverage or benefit as
provided in subparagraphs (i) through (iv) of paragraph 1(e), the Executive
shall execute and deliver a Release to the Employer in substantially the form of
Appendix A to this Agreement which Release will only be executed upon the
Executive becoming satisfied that the Consideration recited therein has been
paid, or can reasonably be expected to be paid in the future.
(i) If, after the Executive has assumed the Initial
Position or the Position, (A) the Employer terminates the Executive's employment
under this Agreement for any reason other than for Cause or the death or
Permanent Disability of the Executive or (B) the Executive terminates his
employment under this Agreement for Good Reason, the Employer shall pay to the
Executive promptly after the event giving rise to such payment occurs an amount
equal to the sum of (x) (1) the Executive's Base Salary (as defined in this
Agreement) accrued through the date the termination of the Executive's
employment under
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this Agreement is effective, (2) any amounts payable under any of the Employer's
benefit plans in accordance with the terms of such plan, except as may be
required by Section 401(a)(13) of the Internal Revenue Code of 1986, as amended
(the "Code") and (3) any amount in respect of excise taxes required to be paid
to the Executive pursuant to paragraph 1(f), with such payments, rights and
benefits described in clauses (x)(1) and (x)(2) hereof being collectively
referred to herein as the "Accrued Obligations," (y) an amount equal to the
aggregate premiums that would be payable by the Executive to maintain in effect
throughout the period (the "Subsequent Period") from the date of termination of
the Executive's employment under this Agreement through the remainder of the
Term had the Executive remained employed (assuming no increase in insurance
premium rates) the same medical, health, disability and life insurance coverage
provided to the Executive by the Employer immediately prior to the date of such
termination (the "Benefit Obligations") and (z) the Employer shall pay to the
Executive a severance payment equal to 3.00 times the sum of (i) the Executive's
annual Base Salary as of the effective date of termination of the Executive's
employment under this Agreement and (ii) the average of the Bonus (the "Average
Bonus") paid to the Executive pursuant to paragraph 3(b) for the three most
recent whole years the Executive has been employed pursuant to this Agreement,
or if the Executive has not been employed pursuant to this Agreement for three
whole years, the average of Bonus paid to the Executive for the number of whole
years the Executive has been employed pursuant to this Agreement (collectively,
the "Severance Amount"). The Severance Amount shall be paid in successive equal
semi-monthly installments in accordance with the Employer's prevailing payroll
practices, commencing with the first regular payday following the effective date
of the Release and not to exceed 72 installments. Notwithstanding the foregoing,
commencing with the date (the "Date") on which the Executive attains age 62, the
Severance Amount shall automatically decrease each day after the Date so that on
any given date after the Date, the Severance Amount shall be that amount as is
determined by multiplying a fraction, the numerator of which is the number of
days which have elapsed since the Date and the denominator of which is one
thousand and ninety-five (1,095). For the avoidance of doubt, at age 65 or
older, the Executive shall not be entitled to receive any Severance Amount.
(ii) If the Employer terminates the Executive's
employment under this Agreement because of the death or Permanent Disability of
the Executive, the sole obligation of the Employer shall be to pay the Accrued
Obligations to the Executive or his estate, provided, however, that in the event
the employment of the Executive under this Agreement is terminated by the
Employer because of the death of the Executive, the Employer shall pay to the
personal representatives of the Executive an amount equal to the Executive's
Base Salary and the Average Bonus for the lesser of the remainder of the Term or
12 months from the date of the Executive's death.
(iii) If (A) the Employer terminates the Executive's
employment under this Agreement for Cause or (B) the Executive terminates his
employment under this Agreement for any reason other than Good Reason, the death
or the Permanent Disability of
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the Executive or pursuant to paragraph 1(d), the sole obligation of the Employer
to the Executive shall be to pay the Accrued Obligations to the Executive or
his estate.
(iv) No provision of this Agreement shall adversely
affect any vested rights of the Executive under the Employer's existing benefit
plans or other plans the Employer may establish in the future; provided,
however, upon the termination of the employment of the Executive as provided in
this Agreement, all future vesting of the Executive's rights under all such
plans shall terminate without further action by the Employer.
(v) It is intended that this Agreement be drafted and
administered in compliance with section 409A of the Code, including, but not
limited to, any future amendments to Code section 409A, and any other Internal
Revenue Service or other governmental rulings or interpretations (together,
"Section 409A") issued pursuant to Section 409A so as not to subject the
Executive to payment of interest or any additional tax under Code section 409A.
The parties intend for any payments under this paragraph 1 to either satisfy the
requirements of Section 409A or to be exempt from the application of Section
409A, and this Agreement shall be construed and interpreted accordingly. In
furtherance thereof, if payment or provision of any amount or benefit hereunder
that is subject to Section 409A at the time specified herein would subject such
amount or benefit to any additional tax under Section 409A, the payment or
provision of such amount or benefit shall be postponed to the earliest
commencement date on which the payment or provision of such amount or benefit
could be made without incurring such additional tax. In addition, to the extent
that any Internal Revenue Service guidance issued under Section 409A would
result in the Executive being subject to the payment of interest or any
additional tax under Section 409A, the parties agree, to the extent reasonably
possible, to amend this Agreement in order to avoid the imposition of any such
interest or additional tax under Section 409A, which amendment shall have the
minimum economic effect necessary and be reasonably determined in good faith by
the Employer and the Executive.
(vi) If a payment under paragraph 1(e)(i) or above
does not qualify as a short-term deferral under Section 409A (or any similar or
successor provisions), and the Executive is a Specified Employee (as defined
herein) as of his Termination Date, distributions to the Executive may not be
made before the date that is six months after the date of the Termination Date
or, if earlier, the date of the Executive's death (the "Six-Month Delay").
Payments to which the Executive would otherwise be entitled during the first six
months following the Termination Date (the "Six-Month Delay Date") will be
accumulated and paid on the first day of the seventh month following the
Termination Date. Notwithstanding the Six-Month Delay set forth in this
paragraph 1(b)(vi):
(A) To the maximum extent permitted under
Section 409A (or any similar or successor
provisions), during each month of the Six-Month Delay
Date, the Employer will pay the Executive an amount
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equal to the lesser of (I) the total monthly
severance provided under paragraph 1(b)(ii) and (iii)
above, or (II) one-sixth of the lesser of (1) the
maximum amount that may be taken into account under a
qualified plan pursuant to Code Section 401(a)(17)
for the year in which the Executive's Date of
Termination occurs, and (2) the sum of the
Executive's annualized compensation based upon the
annual rate of pay for services provided to the
Employer for the taxable year of the Executive
preceding the taxable year of the Executive in which
his Termination Date occurs (adjusted for any
increase during that year that was expected to
continue indefinitely if the Executive had not had a
Termination Date); provided that amounts paid under
this sentence will count toward, and will not be in
addition to, the total payment amount required to be
made to the Executive by the Employer under paragraph
1(e)(i)); and
(B) To the maximum extent permitted under
Section 409A (or any similar or successor
provisions), within ten days of the Termination Date,
the Employer will pay the Executive an amount equal
to the applicable dollar amount under Code Section
402(g)(1)(B) for the year of the Executive's
Termination Date; provided that the amount paid under
this sentence will be inclusive of, and will not be
in addition to, the total payment amount required to
be made to the Executive by the Employer under
paragraph 1(b).
(1) For purposes of this Agreement,
"Specified Employee" has the
meaning given that term in Section
409A (or any similar or successor
provisions). The Employer's
"specified employee identification
date" (as described in Treas. Reg.
1.409A-1(i)(3)) will be December 31
of each year, and the Employer's
"specified employee effective date"
(as described in Treas. Reg.
1.409A-1(i)(4) or any similar or
successor provisions) will be
February 1 of each succeeding year.
(f) In the event that the independent registered public
accounting firm of the Employer or the Internal Revenue Service determines that
any payment, coverage or benefit provided to the Executive pursuant to this
Agreement is subject to the excise tax imposed by Sections 280G or 4999 of the
Code or any successor provision thereof or any interest or penalties incurred by
the Executive with respect to such excise tax, the Employer, within 30 days
thereafter, shall pay to the Executive, in addition to any other payment,
coverage or benefit due and owing hereunder, an additional amount that will
result in the Executive's net after tax position, after taking into account any
interest, penalties or taxes imposed on the amounts payable under this paragraph
1(f), upon the receipt of the payments
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provided for by this Agreement be no less advantageous to the Executive than the
net after tax position to the Executive that would have been obtained had
Sections 280G and 4999 of the Code not been applicable to such payment, coverage
or benefits. Except as otherwise provided in this Agreement, all determinations
to be made under this paragraph 1(f) shall be made by tax counsel whose
selection shall be reasonably acceptable to the Executive and the Employer and
whose fees and costs shall be paid for by the Employer.
(g) Any notice of termination of the employment of the
Executive under this Agreement by the Employer to the Executive or by the
Executive to the Employer shall be given in accordance with the provisions of
paragraph 11.
(h) 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 is successful on the merits.
2. Duties of the Executive.
(a) Subject to the ultimate control and discretion of the
Board of the Employer, the Executive shall serve in the Initial Position and,
after assuming the Position, the Position and perform all duties and services
commensurate with the Initial Position or the Position, as the case may be.
Throughout the Term, the Executive shall perform all duties reasonably assigned
or delegated to him under the By-laws of the Employer or from time to time by
the Board consistent with the Initial Position or the Position, as the case may
be. Except for travel normally incidental and reasonably necessary to the
business of the Employer and the duties of the Executive under this Agreement,
the duties of the Executive shall be performed from an office location not
greater than 50 miles from Hermitage, Pennsylvania.
(b) The Executive shall devote substantially all of the
Executive's business time and attention to the performance of the Executive's
duties under this Agreement and, during the Term, the Executive shall not engage
in any other business enterprise that requires any significant amount of the
Executive's personal time or attention, unless granted the prior permission of
the Board. The foregoing provision shall not prevent the Executive's purchase,
ownership or sale of any interest in, or the Executive's engaging, but not to
exceed an average of five hours per week, in, any business that does not compete
with the business of the Employer or the Executive's involvement in charitable
or community activities, provided, that the time and attention that the
Executive devotes to such business and charitable or community activities does
not materially interfere with the performance of his duties under this Agreement
and that a material portion of the time devoted by the Executive to charitable
or community activities are devoted to charitable or community activities within
the Employer's market area and further provided that such conduct complies in
all material respects with applicable policies of the Employer.
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(c) The Executive shall be entitled to 20 business days of
vacation leave during each calendar year with full compensation, and to be taken
at such time or times, as the Executive and the Employer shall mutually
determine. Earned but unused vacation shall be accrued in accordance with the
Employer's vacation policy.
3. Compensation. For all services to be rendered by the Executive
under this Agreement:
(a) The Employer shall pay the Executive a base salary (the
"Base Salary") at an annual rate of $500,000.00, plus such other compensation as
may, from time to time, be determined by the Employer. At the end of each fiscal
year of the Employer, the Employer shall review the amount of the Executive's
Base Salary, and shall increase such Base Salary for the following year to such
amount as the Board may determine in its discretion. Such Base Salary and other
compensation shall be payable in accordance with the Employer's normal payroll
practices as in effect from time to time.
(b) The Employer agrees that the Executive will be eligible to
participate in the employer's executive incentive compensation plan and shall
receive, in accordance in all material respects with applicable policies of the
Employer relating to incentive compensation for executive officers, an annual
bonus (the "Bonus") payable in cash, at the same time as bonuses are paid to
other executive officers of the Employer, in such amount as may be fixed by the
Board in its discretion based upon the performance of the Employer and the
contributions of the Executive to such performance. Notwithstanding the
foregoing, all bonuses shall be paid within two and one-half months of the close
of each fiscal year. The Employer agrees that the Executive will be eligible to
participate in the Employer's long term incentive plan.
(c) From and after the Effective Date and throughout the Term:
(i) The Employer shall provide the Executive with an
automobile selected by the Executive and approved by the Compensation Committee
of the Employer's Board of Directors at the Employer's sole cost and expense.
The automobile shall be replaced with a substantially equivalent automobile
owned or leased by the Employer in the future as shall be mutually agreed by the
Executive and the Compensation Committee of the Board. The Employer shall bear
all gas, insurance, repairs, maintenance, car telephone and other operating
expenses for the automobile.
(ii) The Employer will pay the annual dues for the
Executive's membership in one country club of the Executive's choosing. In
addition, the Employer shall pay any reasonable club usage charges related to
the Employer's business upon submission by the Executive of appropriate
verifying information. The Employer shall also pay any bond, admission or
initiation fee that may be required for membership, provided however that upon
refund to the Executive of all or any portion of such bond, admission or
initiation
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fee, the refunded amount shall be promptly remitted by the Executive to the
Employer to the extent such bond or fee had been paid by the Employer.
(iii) The compensation provided for in this paragraph
3 shall be in addition to such rights as the Executive may have, during the
Executive's employment under this Agreement or thereafter, to participate in and
receive benefits from or under any benefit plans the Employer may in its
discretion establish for its employees or executives, subject to the terms and
conditions of any such plans. To the extent any of such benefits are taxable to
the Executive, the Executive shall be solely responsible for such taxes.
4. Expenses. The Employer shall promptly reimburse the Executive for
(a) all reasonable expenses paid or incurred by the Executive in connection with
the performance of the Executive's duties and responsibilities under this
Agreement, upon presentation of expense vouchers or other appropriate
documentation therefor (b) all reasonable professional expenses, such as
licenses and dues and professional educational expenses, paid or incurred by the
Executive during the Term; and (c) all reasonable expenses incurred in the sale
of Executive's residence at 3315 Georgetown, Houston, Texas (the "Houston
Home"), all reasonable packing and moving expenses associated with the move from
Texas to Pennsylvania, the difference between the sales price of the Houston
Home and two appraisals of fair market value for the Houston Home up to a
maximum of ten (10%) percent, temporary housing expenses if necessary while a
suitable residence in Pennsylvania is prepared, and all reasonable expenses
(other than the sales price) associated with the purchase of a new residence in
the Hermitage, PA metropolitan area, and all other amounts as are generally
described in any RELO Guidelines of Employer (the "Relocation Costs").
5. Reimbursement. The Executive shall reimburse the Employer, if
Executive's employment is terminated for Cause, or for other than Good Reason,
within one (1) year from the date of this Agreement, all of the Relocation
Costs. Thereafter, and if the Executive's employment is terminated for Cause, or
for other than Good Reason, during the period not to exceed two (2) years from
the date of this Agreement, the Executive shall reimburse the Employer one-half
( 1/2) of the Relocation Costs.
6. Confidential Information. The Executive understands that in the
course of his employment by the Employer the Executive will receive confidential
information concerning the business of the Employer and that the Employer
desires to protect. The Executive agrees that he will not at any time during or
after the period of his employment by the Employer reveal to anyone outside the
Employer, or use for his own benefit, any such information that has been
designated as confidential by the Employer or understood by the Executive to be
confidential without specific written authorization by the Employer. Upon
termination of the employment of the Executive under this Agreement, and upon
the request of the Employer, the Executive shall promptly deliver to the
Employer any and all written materials, records and documents, including all
copies thereof, made by the Executive or coming into his possession during the
Term and retained by the Executive containing or concerning
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confidential information of the Employer and all other written materials
furnished to and retained by the Executive by the Employer for his use during
the Term, including all copies thereof, whether of a confidential nature or
otherwise. Confidential Information, however, will never be construed to mean
information that is publicly available or that the Employer has ceased making
efforts to protect.
7. Non-Competition and Non-Disparagement.
(a) For the purposes of this Agreement, the term "Competitive
Enterprise" shall mean any federal or state-chartered bank, trust company,
savings and loan association, savings bank, credit union, consumer finance
company, bank holding company, savings and loan holding company, unitary holding
company, financial holding company or any of the foregoing types of entities in
the process of organization or application for federal or state regulatory
approval and shall also include other providers of financial services and
entities that offer financial services or products that compete with the
financial services and products currently or in the future offered by the
Employer or its subsidiaries or affiliates.
(b) For a period of three years (the "Restricted Period")
immediately following the Employer's termination of the Executive's employment
under this Agreement, the Executive shall not, provided that the Employer
remains in compliance with obligations under this Agreement:
(i) serve as a director, officer, employee or agent
of, or act as a consultant or advisor to, any Competitive Enterprise in any city
or county in which the Employer or its subsidiaries or affiliates are then
conducting business or maintain an office or have publicly announced their
intention to conduct business or maintain an office;
(ii) in any way, directly or indirectly, solicit,
divert or contact any existing or potential customer or business of the Employer
or any of its subsidiaries or affiliates that the Executive solicited, became
aware of or transacted business with during the employment of the Executive by
the Employer for the purpose of selling any financial services or products that
compete with the financial services or products currently or in the future
offered by the Employer or its subsidiaries and affiliates; or
(iii) solicit or assist in the employment of any
employee of the Employer or its subsidiaries or affiliates for the purpose of
becoming an employee of or otherwise provide services for any Competitive
Enterprise.
(c) The Executive agrees that during or after the period of
his employment by the Employer, in any way, directly or indirectly, make any
oral or written statement, comment or other communication designed or intended
to impugn, disparage or otherwise malign the reputation, ethics, competency,
morality or qualification of the Employer or any of its subsidiaries or
affiliates or any of its directors, officers, employees or customers.
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8. Specific Performance. The parties agree that irreparable damage
would occur in the event that any of the provisions of paragraphs 6 or 7 were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of paragraphs 6 or 7 and to
enforce specifically the terms and provisions of paragraphs 6 or 7, this being
in addition to any other remedy to which any party is entitled at law or in
equity.
9. Representation and Warranty of the Executive. Other than his current
at will employment, the Executive represents and warrants that he is not under
any obligation, contractual or otherwise, to any other firm or corporation,
which would prevent his entry into the employ of the Employer or his performance
of the terms of this Agreement.
10. Entire Agreement; Amendment. This Agreement contains the entire
agreement between the Employer and the Executive with respect to the subject
matter of this Agreement, and may not be amended, waived, changed, modified or
discharged except by an instrument in writing executed by the parties hereto.
11. Assignability. This Agreement shall be binding upon, and inure to
the benefit of, the Employer and its permitted successors and assigns under this
Agreement. This Agreement shall not be assignable by the Executive, but shall
inure to the benefit of the Executive's heirs, executors, administrators and
legal representatives.
12. Notice. Any notice that may be given under this Agreement shall be
in writing and be deemed given when hand delivered and acknowledged or, if
mailed, one day after mailing by registered or certified mail, return receipt
requested, or if delivered by an overnight delivery service, one day after the
notice is delivered to such service, to either party hereto at their respective
addresses stated above, or at such other address as either party may designate
by similar notice.
13. No Third Party Beneficiaries. Except for the Executive's Estate
upon his Death, nothing in this Agreement, express or implied, is intended to
confer upon any person or entity other than the parties (and the Executive's
heirs, executors, administrators and legal representatives) any rights or
remedies of any nature under or by reason of this Agreement.
14. Successor Liability. The Employer shall require any subsequent
successor, whether direct or indirect, by purchase, merger, consolidation or
otherwise, to all or substantially all of the business or assets of the Employer
to assume expressly and agree to perform this Agreement in the same manner and
to the same extent that the Employer would be required to perform it if no such
succession had taken place.
15. Mitigation. The Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise, nor shall the amount of any payment or benefit provided for in
this Agreement be reduced by
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any compensation earned by the Executive as the result of employment by another
employer or by retirement benefits payable after the termination of this
Agreement, except that the Employer shall not be required to provide the
Executive and his eligible dependents with medical insurance coverage as long as
the Executive and his eligible dependents are receiving comparable medical
insurance coverage from another employer.
16. Waiver of Breach. The failure at any time to enforce or exercise
any right under any of the provisions of this Agreement or to require at any
time performance by the other parties of any of the provisions hereof shall in
no way be construed to be a waiver of such provisions or to affect either the
validity of this Agreement or any part hereof, or the right of any party
hereafter to enforce or exercise its rights under each and every provision in
accordance with the terms of this Agreement.
17. No Attachment. 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
paragraph 16 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 hereto.
18. Severability. The invalidity or unenforceability of any term,
phrase, clause, paragraph, restriction, covenant, agreement or other provision
hereof shall in no way affect the validity or enforceability of any other
provision, or any part thereof, but this Agreement shall be construed as if such
invalid or unenforceable term, phrase, clause, paragraph, restriction, covenant,
agreement or other provision had never been contained herein unless the deletion
of such term, phrase, clause, paragraph, restriction, covenant, agreement or
other provision would result in such a material change as to cause the covenants
and agreements contained herein to be unreasonable or would materially and
adversely frustrate the objectives of the parties as expressed in this
Agreement.
19. Survival of Benefits. Any provision of this Agreement that provides
a benefit to the Executive and that by the express terms hereof does not
terminate upon the expiration of the Term shall survive the expiration of the
Term and shall remain binding upon the Employer until such time as such benefits
are paid in full to the Executive or his estate it being the intent of the
parties hereto that all amounts due hereunder shall remain an obligation of the
Employer after the Death of the Executive.
20. Construction. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Pennsylvania, without
giving effect to principles of conflict of laws. All headings in this Agreement
have been inserted
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solely for convenience of reference only, are not to be considered a part of
this Agreement and shall not affect the interpretation of any of the provisions
of this Agreement.
21. Negotiation. All parties shall attempt in good faith to resolve any
controversy, claim or dispute of 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.
22. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
F.N.B. CORPORATION
By: /s/ Stephen J. Gurgovits
---------------------------------
Stephen J. Gurgovits, President
and Chief Executive Officer
/s/Robert V. New, Jr.
---------------------------------
Robert V. New, Jr., Executive
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